author: Mr. Justice Culbertson Mr. Justice Dady

text:
    Amanda Ritter and Josephine Ritter Schmidt, Appellants, v. Louis G. Ritter, Appellee.

      Dady, J., dissenting.
    Opinion filed October 28, 1940.
    Rehearing denied February 20, 1941.
    Elmer C. Weihl and Philip G. Listeman, both of East St. Louis, for appellants; Whitnel, Browning, Listeman & Walker, of East St. Louis, of counsel.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

Appellants, Amanda Bitter and Josephine Bitter Schmidt (hereinafter called plaintiffs), have appealed from a judgment of the circuit court of Monroe county, sustaining a motion to dismiss plaintiffs’ complaint and in bar of plaintiffs’ action, which motion was filed by appellee, Louis Gr. Bitter (hereinafter called defendant).

The plaintiffs are the widow and daughter of Joseph Bitter, who died intestate, and they have filed their complaint against defendant to recover damages occasioned by them as a-result of defendant’s alleged wrongful conduct, arising out of a certain real estate transaction between defendant and the said Joseph Bitter during the latter’s lifetime. In the complaint it is alleged, in substance, that the defendant and Joseph Bitter had agreed upon the purchase of certain property at a foreclosure sale, and that if there was no redemption of said property, the said Joseph Bitter, as a result of the advancement by him of a certain sum of money, was to receive a portion of such property known as the “Nixon property” (defendant was to receive adjoining property). The certificate of purchase for the real estate involved was taken by the said defendant and Joseph Bitter, as joint tenants. Sometime thereafter the said Joseph Bitter became mortally ill and it is alleged he inquired of the defendant if he, the defendant, would endeavor to cheat the plaintiffs in this action, out of their interest in such property in the event of the said Joseph Bitter’s death, but was advised by the defendant that he would not cheat the plaintiffs out of their property, and that they would obtain title to the Nixon property as was agreed upon.

It is further alleged in the complaint that such representations were made by the defendant for the false and fraudulent purpose of lulling the said Joseph Bitter into a sense of false security, and to prevent him from severing the joint tenancy relationship in the certificate, and from conveying his interest in the premises to the plaintiffs. It is, likewise, alleged that after the death of Joseph Bitter, the defendant, for the purpose of cheating and defrauding the plaintiffs, presented the certificate of purchase to the master in chancery and caused a master’s deed to be executed to him, the defendant, which he thereupon filed for record. After plaintiffs had demanded that defendant convey such property to them he refused to do so, but claimed to be the sole owner thereof. It is then alleged in the complaint that in order to protect their rights in the said Nixon property, it was necessary for plaintiffs to institute a chancery suit against defendant in the circuit court of Monroe county, which suit was contested by defendant, who claimed ownership of the property. Such action was prosecuted to a successful conclusion, and a decree was entered in said cause, ordering defendant to convey said real estate to plaintiffs, as well as directing certain other specific relief.

Plaintiffs, likewise, allege that by reason of the conduct of the defendant, plaintiffs were required to institute such action, and were required to expend a large sum of money for attorney’s fees and other expenses, which were necessary to the successful prosecution of said suit. Plaintiffs pray for judgment in the sum of $5,000, and costs.

In a second count, in addition to the allegations contained in the first count, plaintiffs aver that the acts of defendant were wilful and malicious, and were done for the purpose of cheating and defrauding* plaintiffs, and in such count plaintiffs pray for punitive damages in addition to actual damages sustained by them.

Defendant filed a motion to dismiss the complaint, alleging, in substance, that the complaint was insufficient in law and failed to state a cause of action or establish any right in plaintiffs to recover damages against defendant, and also, that the complaint showed upon its face that the matters therein alleged were adjudicated in the previous chancery action herein-above referred to, which was instituted by plaintiffs as against defendant, and that, therefore, the judgment rendered in the previous cause is “res adjudicata” and is a bar to the claims and demands of plaintiffs set forth in the complaint filed in the instant cause. The court allowed defendant’s motion and entered judgment in bar of plaintiffs ’ action and for costs.

On appeal to this court, it is contended by plaintiffs, and denied by defendant, that said complaint states a cause of action, and that the former decree referred to in the statement of facts, and in the complaint, is not “res adjudicata” as to the matters presented in the complaint.

While it is true that as a general rule, and in the absence of any contractual or statutory liability therefor, attorney’s fees and expenses incurred by a plaintiff, or which a plaintiff is obliged to pay in litigation of his claim against a defendant, are not recoverable as damages against the defendant because they are deemed to be too remote (Matarrese v. Monaco, 274 Ill. App. 457; Chicago Coliseum, Club v. Dempsey, 265 Ill. App. 542), still, it has been well established in this and other States that, if a defendant’s intentional wilful and wrongful conduct results necessarily in plunging a plaintiff into litigation and in causing him to incur expenses in protecting his property rights, the conjunction of wrong and damage in such circumstance gives rise to a cause of action on behalf of such plaintiff, as against the wrongdoer (Himes v. Keighblingher, 14 Ill. 469; McEwen v. Kerfoot, 37 Ill. 530; Philpot v. Taylor, 75 Ill.309).

It is contended by the defendant that, while this principle operates if a plaintiff is forced into litigation with a third party, it does not apply where the wrongful acts of a defendant have involved plaintiff in litigation with the same defendant in a previous action. A rule, quoted from certain legal compilations by defendant, is advanced, which, in substance, declares that the right to recovery in a case of this character applies only when plaintiff has been previously involved in litigation with others than the defendant as the result of previous wrongful acts of the wrongdoer who is later made a defendant in the action in which the attorney’s fees are sought to be recovered. Defendant contends that it is only when such litigation with third parties is undertaken, or forced upon a plaintiff, that the attorney’s fees incurred can be treated as a legal consequence of the wrongful act of a defendant. We cannot agree with such contention.

In our opinion, no sound distinction is to be made between instances, where the wrongful act of the defendant necessitates action by plaintiff as against that defendant, and cases where action against third parties is required to be undertaken in order to repair the damages which may have been done by such wrongdoer. It would indeed be anomalous if a defendant, by arbitrary action of the character outlined in the complaint, could defeat the right of a plaintiff to recover damages by retaining title in himself and refusing to make a conveyance to a plaintiff. In our opinion, the result of a defendant’s wrongful conduct, where action is required to be instituted against such defendant, is equally as apparent as it is in cases where action would be required to be instituted or defended as against third parties. We realize that the doctrine involved in the instant case must be limited to such cases as clearly demonstrate that legal action is necessarily required on the part of a plaintiff to protect certain property rights as a result of the wrongful or malicious conduct of a defendant. The legal expenses incurred in such necessary action may furnish the proper basis for a cause of action as against defendant. We, therefore, feel that the complaint herein states a cause of action.

It is likewise contended by defendant that the former decree in the chancery action, in which the right of the plaintiffs to the property was adjudicated, acts as an estoppel, and that the doctrine of “res adjudicata” applies so as to prevent the assertion in this action of plaintiffs’ claim for damages occasioned by defendant’s wrongful conduct. From the record before us it appears that the claim of plaintiffs, which is asserted in the complaint in the instant case, was not presented, considered, or passed upon in any way in the previous action. The contention which has been advanced that the fact that the claim of plaintiffs might have been asserted in the chancery action which was previously litigated, forever bars its assertion in a subsequent action, is not sound. While the right to recovery in this case, grows out of the former litigation, and is founded upon it, the claim for damages was not asserted, nor passed upon, in any manner, in the previous litigation, and it would not be requiring the parties to relitigate the previous proceeding in any manner since there has been no final decision in the prior case as to the precise subject matter involved in the instant case (Smith v. Rountree, 185 Ill. 219; Brown v. Brown, 286 Ill. App. 471). The claim of plaintiffs constitutes a separate and distinct claim, and plaintiffs have the right to institute a separate suit on such claim (Clancey v. McBride, 338 Ill. 35; Quinn v. Ohlerking, 37 Ill. App. 315).

We must, therefore, conclude that the action of the circuit court of Monroe county, in sustaining the motion to dismiss, and in entering judgment in bar of plaintiffs’ action, was erroneous.

This cause will, therefore, be reversed and remanded to the circuit court of Monroe county, with directions to overrule defendant’s motion to dismiss, and to proceed in accordance with the views expressed in this opinion.

Reversed and remanded.

Mr. Justice Dady

dissenting: I disagree with the majority opinion.

In no one of the cases cited in such opinion was a recovery allowed for expenses incurred in prior litigation between the same parties as those involved in the subsequent suit. No authority has been brought to our attention holding that the party successful in any legal proceeding (except perhaps in suits for malicious prosecution of a civil suit without probable cause where the defendant has been arrested or his property seized or he has received special injury not necessarily resulting in all suits prosecuted to recover for like causes of action) can in"a subsequent proceeding recover from the party who was unsuccessful in the first proceeding attorney’s fees or other expenses incurred by the party successful in such first proceeding. Apparently the precise question has' not been previously passed upon this State. In Smith v. Michigan Buggy Co., 175 Ill. 619, the court said: “Such ordinary trouble and expense, as arise from the ordinary forms of legal controversy, should be endured by the law-abiding citizen as one of the inevitable burdens, which men must sustain under civil government.”

In 39 American Law Reports Annotated, page 1218, there is an extensive collection of authorities on the question and the author says: “Apart from the decisions resulting from the view entertained in some states that an action will lie for damages occasioned by the institution of a civil suit without reasonable or probable cause, it has been uniformly held that payment of the legal costs incurred in the action is the full measure of liability incurred by an unsuccessful litigant. ... It follows that the expense incurred by the successful party in a suit, over and above the taxable costs, cannot be made the basis of a subsequent action against the unsuccessful party.”

In 17 Corpus Juris, page 811, it is said: “Where an action based upon some wrongful act has been prosecuted by plaintiff against defendant to a successful issue, he cannot in a subsequent action recover his costs and expenses in the former action as damages.” The majority opinion in the present case uses the argument that inasmuch as such expenses can be recovered when incurred in prior litigation between plaintiff and a third party, recovery should also be permitted when such prior litigation was between the same parties as are plaintiff and defendant in the sec- • ond suit. The Supreme Court of Washington considered this same argument in the case of Choukas v. Severyns, 3 Wash. (2d) 71, 99 P. (2d) 942, and refused to permit recovery in a case involving only the immediate parties to the original suit although such court said it had already committed itself to the doctrine that such expenses incurred in litigation with third partiés could be recovered. In Perlus v. Silver, 71 Wash. 338,128 Pac. 661, the court said: “There is no common-law principle that permits a successful litigant to recover from his losing adversary the costs and expenses of the litigation. Hence, if such a right exists, it must be statutory. The legislature of this state has given to the successful litigant the right to have certain items of expenses taxed as costs; but these must be taxed in the original action and not recovered by subsequent suit. There, being neither common-law nor statutory authority for maintaining the cause of action in the instant case for the costs and expenses of the previous litigation, the nonsuit as to this was also properly granted.” (See Leslie v. Carter, 268 Mo. 420,187 S. W. 1196.)

I believe the danger inherent in allowing suits of this .character to be maintained is well indicated by the language used by our own Supreme Court in the Smith v. Michigan Buggy Co. case, supra. In that ease the plaintiff brought suit to recover damages alleged to have been sustained by him in a prior civil suit which prior suit he claimed defendant had brought against him maliciously and without probable cause. The court held that the plaintiff had no cause of action and in the course of its opinion said at pages 628 and 629: ‘ ‘ On the other hand, it must be remembered that the courts are open to every citizen; and every man has a right to come into a court of justice and claim what he claims to be his right without fear of being prosecuted for heavy damages. If such actions are allowed, it might oftentimes happen that an honest suitor would be deterred from ascertaining his legal rights through fear of being obliged to defend a subsequent suit, charging him with malicious prosecution. ’ ’ Of course such principal of law applies equally to all litigants, whether plaintiff or defendant. The court further said: “Those, who favor this species of action, also claim that, if the courts refuse to allow such actions to be maintained, litigation will be encouraged, and causeless and unfounded civil suits will be apt to be brought. On the contrary, the danger is that litigation will be promoted and encouraged by permitting such suits as the present action to be brought. This is so, because the conclusion of one suit would be but the beginning of another. A defendant, who had secured a favorable result in the suit against him, would be tempted to bring another suit for the purpose of showing, that there had been malice and want of probable cause in the prosecution of the first suit which he had won. Litigation would thus become interminable. Every unsuccessful action would be apt to be followed by another, alleging malice in the prosecution of the former action. There would thus be substantially a trial of every lawsuit twice instead of once, because in order to show that the first suit was malicious and without probable cause, it would be necessary to go. over again the material facts that had been developed by the proof in such suit.”

In the instant case the attorney’s fees and other expenses sought to be recovered were incurred in the successful prosecution of a chancery proceeding by the present plaintiff against the present defendant. In Patterson v. Northern Trust Co., 286 Ill. 564, 568, the court said: “Any party claiming a judgment for his costs' against his adversary must bring himself within the operation of some statutory provision, and courts have no power to adjudge costs against any one on merely equitable grounds.” In Rasch v. Rasch, 278 Ill. 261, 275, the court said: “We have repeatedly held that solicitors’ fees cannot be taxed as costs against the unsuccessful party in a chancery proceeding in the absence of a statute making provision for the allowance of such fees as costs.” I believe it follows from such cases that in the chancery proceeding brought by the present plaintiff against the present defendant, the court would have been powerless, even on equitable grounds to have allowed the plaintiff the attorney’s fees or other expenses sought to be recovered in the present proceeding. If such expenses, including attorney’s fees, could not have been allowed in such chancery proceeding, I am at a loss to understand how they can properly be allowed in the present proceeding.

In my opinion there is another ground which prevents the maintenance of the present suit. Assuming that plaintiff was entitled to be reimbursed for such expenses, the chancery court had the power in such chancery proceeding to settle all questions incident to the relief therein sought, even if it was necessary in such proceeding to pass upon purely legal rights which would otherwise be beyond the scope of the court’s authority (Stickney v. Goudy, 132 Ill. 213), and in the exercise of such power the chancery court had the right to pass upon the question of the allowance of such expenses. The doctrine of res judicata is limited not only to the issues actually involved and determined in the first suit but extends to every other matter which might have been raised and determined in such suit. (People ex rel. DeCola v. United States Fidelity & Guaranty Co., 306 Ill. App. 518.) Therefore, in my opinion the subject matter of the relief that plaintiff was entitled to from defendant because of the misconduct of defendant is res judicata, and cannot be again adjudicated.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    George C. Peterson, Administrator of Estate of Margaret Eckert Peterson, Deceased, Appellant, v. Cochran and McCluer Company et al., Appellee.
    Gen. No. 41,263.

      Opinion filed January 22, 1941.
    Crahen, Sullivan, O ’Toole & Sullivan, of Chicago, for appellant; John E. Crahen, of counsel.
    Gardner, Carton & Douglas, of Chicago, for ap-pellee.
   Mr. Justice Burke

delivered the opinion of the court.

On June 24, 1936, George C. Peterson, as administrator of the estate of Margaret Eckert Peterson, deceased, filed a complaint in the circuit court of Cook county and therein sought damages for the death of his intestate because of injuries received by her in a fall which took place on April 27, 1936, in the hallway of a building located at 6110 North Claremont avenue, Chicago, which building was under the management and control of the defendant, Cochran & McCIuer Company, a corporation. August Reschke and Charles P. Morrow were named as additional defendants. Issue was joined and the case tried before the court and a jury. August Reschke was dismissed out of the suit and the court directed a verdict in favor of Charles P. Morrow. The trial resulted in a verdict finding the remaining defendant, Cochran & McCluer Company, not guilty. Motions made by plaintiff for judgment in his favor notwithstanding the verdict and for a new trial were denied, and judgment on the verdict was entered against plaintiff, to reverse which this appeal is prosecuted.

On Monday, April 27, 1936, Margaret Eckert Peterson and her husband, who is the plaintiff, together with their son Robert Grant Peterson, lived in an apartment on the third floor of the 6-apartment building at 6110 North Claremont avenue, Chicago. She was 38 years of age and Robert was 13 years of age. The stairway ran from the vestibule on the first floor to the top of the building and was carpeted with a runner that ran lengthwise down the stairs. On the landing immediately below the third floor there was a 7-foot carpet, which ran crosswise and was tacked to and over the carpet that ran up the stairs. The only occurrence witness was Esther Johnson, who testified for plaintiff that she worked at Mrs. Peterson’s home as a maid once every other week; that on Monday, April 27,1936, she was so employed; that about 5 p. m. Mrs. Peterson went out shopping; that after Mrs. Peterson was gone about an hour, witness heard some noise out on the stairway, and that she opened the door and went out to see what it was; that Mrs. Peterson was lying on the landing (between the second and third floor) trying to get up; that her attention was attracted by a sound like something falling; that witness opened the door as soon as she heard the sound and saw Mrs. Peterson trying to pick herself up; that Mrs. Peterson had two bags; that “when I first saw her I noticed that the bundles were on the floor. I then helped Mrs. Peterson in. I went down to where she was. She was on that little landing. I mean the second landing. I helped her in and wiped her forehead out and took some ice out of the refrigerator and put it on her head. As I was helping her up the stairs I noticed that she had a big lump on her head. It was bleeding a little. It was on top of her left eye, perhaps a little more than an inch and a half above the left eye. It seemed to hurt her quite a bit. She felt kind of sick. When she got in the apartment I put ice on her head and then she went to lay down in her bedroom. I think it was about a half hour later that Mr. Peterson came home.” In answer to a question as to whether there was any change in the condition on the forehead after Mrs. Peterson was brought into the apartment, witness said: “It was growing pretty fast.” Shortly thereafter, Mrs. Johnson went home and she did not again see Mrs. Peterson alive. When plaintiff reached home he found his wife in bed and noticed a lump on her head in the region of her temple, which had been cut a little and which had been bleeding. Ice packs were applied and she appeared more or less dazed. During that night she was very nervous and slept very fitfully and very restlessly. This condition did not improve, but a physician was not consulted until Thursday, April 30, 1936. Plaintiff and his wife then visited the family physician, Dr. John Hollison, Jr., whose office was located in the vicinity. Dr. Hollison found pus underneath the scab. He lifted the scab, cleaned the pus out, applied an antiseptic and then put an adhesive bandage on the wound. On this visit to Dr. Hollison, Mrs. Peterson was very nervous. The laceration healed up perfectly. Mrs. Peterson did not see the doctor again until Thursday, May 7, 1936, at which time a more thorough examination was made. Dr. Hollison advised the application of either hot or cold compresses. When she returned to her home, hot applications were applied. When no relief was afforded, cold applications were applied. About 9 o’clock that evening (May 7, 1936) Mrs. Peterson was suffering severe pain and Dr. Hollison was called to her home. He administered a hypodermic and she went to sleep. She awakened during the night and attempted to walk from her bedroom to the bathroom but fell in the hallway and was assisted back to her bed. She then became nauseated and vomited. Shortly thereafter, owing to the seriousness of her illness, she was removed to a hospital, where she died at 7:30 the following morning, May 8, 1936. The testimony shows that prior to the evening of April 27,1936, Mrs. Peterson enjoyed good health and had never been treated by a physician for any serious illness.

Dr. John F. McNamara, an expert called by plaintiff, answering a hypothetical question, testified that:

“The patient had a low gland infection which gradually invaded all the tissues it could invade. It could find no egress to the outside because the wound was sealed over and a parotitis gradually progressed to the neck, and where there was septic process in existence — and the only way you can explain a rather sudden death is that — and violent vomiting, temperature of 103.2 according to the evidence, and that there was a pyemia resulting in death. By the term ‘pyemia’ I mean the products of this gathering broke into the bloodstream and that shows there could have been pus in the bloodstream. By ‘edema’ I mean the swelling of the tissues. The drainage in that area starts in the periauricular glands, those glands in front of the ear, down into the neck, follows the lymphatic glands, the drainage.” The only evidence connecting the alleged injury and the death of Mrs. Peterson is this answer which Dr. McNamara made to the hypothetical question. The plaintiff is required to establish a causal connection between the death and the alleged accident. On cross examination Dr. McNamara was asked to consider certain facts which defendants contend are undisputed, and he answered that if those were the facts he would change his opinion as to the cause of death. He testified that “it took twelve days for this patient to die, I believe. It would make a difference in my answer if I knew that the wound over the eye had disappeared, and healed perfectly at the time the patient went back to the doctor for the second time.” Dr. Paul Gr. Schmitt, a coroner’s pathologist, called by defendant, testified that in the presence of Dr. Hollison he performed a post mortem examination on the body of the deceased on or about May 8, 1936. His opinion was that there was no connection between the trauma and the cause of death. He further testified that “my reason is that the post mortem findings show that the wound which is in question, or the lesion, there was no trace left of it. It was completely healed. The skin had grown — her epithelium — had grown completely closed there and underneath, across this supposed lesion there was no infection or inflammation of any type. The pathology, or disease, which was found was a considerable distance away from there, and the intervening tissues showed no evidence of inflammation. Had there been a connecting link between the two, anatomically we should be likely to find the original focus in the original wound with evidence of infection or inflammation gradually following the tissues down the side of the head to the point of the face and neck, at the point in question where the diseased structures were found.” On cross-examination, Dr. Schmitt testified that in examining the body he found evidence of inflammation of the parotid gland, that he found acute parotitis, which is commonly called mumps. Dr. Joseph E. Schaefer, who confines his practice to injuries and infections and things occurring about the face and neck, called by defendant, testified as an expert in support of the theory of the defendant that there was no causal connection between the alleged fall of the deceased and her death. It is obvious that there was presented to the jury competent 'evidence from which it could find that the defendant was not guilty of negligence proximately contributing to the death of Mrs. Peterson, and also competent evidence that there was no causal connection between the alleged injury in the hallway and her death. There is competent evidence in the record from which the jury would be justified in returning a verdict that the death of Mrs. Peterson was not caused by the alleged accident. There is testimony that the laceration on the forehead could not have caused the subsequent parotitis (mumps), because had it done so the post mortem examination would have demonstrated a direct pathway between the original wound and the gland itself. The wound on the forehead had healed and was not even apparent at the time of the post mortem examination.

Plaintiff contends that deceased was caused to trip and fall forward by reason of the defective condition of the carpet on the stairway. There was a conflict in the evidence concerning the condition of the carpet before and on the evening of the alleged accident.

The first criticism leveled at the judgment is that the verdict is contrary to the manifest weight of the evidence. We have studied the testimony and photograph and find that the verdict is not against the manifest weight of the evidence. The proposition as to whether the defendant was guilty of the negligence charged was within the province of the jury, and under the circumstances, we would not be warranted in disturbing the verdict on the basis that it is against the manifest weight of the evidence.

A second contention by plaintiff is that the court admitted improper evidence adduced by the defendants. The medical testimony offered by plaintiff was furnished by Dr. John P. McNamara, who testified as an expert. Plaintiff declares that “in the hypothetical question submitted to Dr. McNamara which embodied the plaintiff’s theory of the case as shown by the evidence, when asked his opinion of the cau'se of death, he was not permitted to answer the question for the reason that the defendant interposed objections based upon the fact that the hypothetical question did not include the findings of the deputy coroner, which said findings had not been offered nor received in evidence at that time, and which said findings were contrary to plaintiff’s theory of the case. It then became necessary for the plaintiff, in order to secure an affirmative answer, upon the rulings of the Court, to embody in the question the coroner’s findings which in our opinion were not essential, and the Court by its said rulings permitted the defendant to incorporate in the question evidence which was highly prejudicial to the plaintiff’s case and thereby the jury was led to believe that the plaintiff admitted that the findings of the deputy coroner were true and correct.” The record shows that at the time the hypothetical question was propounded by the plaintiff there was no dispute as to the findings of the deputy coroner, a physician. These findings were based on a post mortem examination made shortly after the death of Mrs. Peterson. Defendant insisted that the plaintiff be required to include in his hypothetical question all of the findings of the deputy coroner. Apparently, plaintiff recognized the validity of the argument of defendant because he then modified the question so as to include all of the findings. The portion of the deputy coroner’s findings which plaintiff was required to incorporate in the hypothetical question required Dr. McNamara to also assume that there were no external marks of violence on the body of the hypothetical person. The record shows that it was undisputed that there were no external marks of violence on the deceased at the time of the post mortem examination. The rule is that “where an expert witness is asked an hypothetical question and the facts are not disputed, the question must contain all the material facts or the opinion is likely to mislead the jury. Such question must not ignore material facts which affect the opinion given. While the opposite party may cross-examine the witness he is not required so to do, as cross-examination may not remove the impression of the first answer.” {Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482.) “If the facts are disputed the party examining the witness may include in the hypothetical question only those facts which the evidence on his side tends to prove, but where the evidence as to the particular matter inquired into is not in dispute the question must contain all of the facts.” (Sanitary District of Chicago v. Industrial Commission, 343 Ill. 236.) Our view is that the court did not err in requiring the plaintiff to amend his hypothetical question. The hypothetical question as propounded to the expert stated the facts according to the theory of the plaintiff and also the undisputed facts.

We turn now to a consideration of plaintiff’s point that the court refused to admit proper evidence on his behalf. Mrs. Johnson who testified that not more than a half minute expired from the time she heard the noise outside of the apartment until she reached the side of Mrs. Peterson, was asked, “When you got to where Mrs. Peterson was lying, did you say anything to her and did she say anything to you?” On objection of defendant, the court refused to permit her to answer. Plaintiff then offered to show that within a half minute from the time Mrs. Johnson heard the noise, she reached the side of the deceased, and she, Mrs. Johnson, said to Mrs. Peterson, “What happened to you, Mrs. Peterson?” and that Mrs. Peterson replied, “I caught my foot on that carpet which was loose and torn.” Plaintiff insists that the conversation was admissible as part of the res gestae. Defendant maintains that the conversation is purely hearsay. There are numerous cases defining the res gestae rule. Whether the circumstances under which a declaration was made are such as to make it reasonably probable that it was spontaneous, presents a preliminary question for the determination of the trial court. The question of admissibility is one of administration, each case being properly decided upon its own facts, and in this regard the trial court should be clothed with a reasonable degree of latitude, since the application of the principle depends on the circumstances of the particular case. (Johnson v. Swords Co., 286 Ill. App. 377.) Professor Wigmore advocates leaving the application of the principle of res gestae absolutely to the trial court’s determination. ' Wig-more on Evidence, 3rd ed. Vol. VI, sec. 1750. Defendant points out that in the excluded answer the deceased explained not only that she caught her foot on the carpet but that the carpet was loose and torn, and that she thus indicates the narrative and deliberate quality of her reply to Mrs. Johnson. Defendant also argues that the answer of Mrs. Peterson was not spontaneous, but was elicited by the inquiry of Mrs. Johnson. We are satisfied .that the trial judge, in the exercise of his discretion and with knowledge of all the circumstances, did not commit error in excluding the conversation from the jury.

Another contention of plaintiff is that the court refused to instruct the jury that “the term ‘ordinary care’ or ‘reasonable care’ as used in these instructions and applied to the plaintiff’s intestate means only such care as a reasonably and ordinary careful person would exercise under the same or similar circumstances.” At the request of plaintiff the court instructed the jury that “the deceased in this case was not required to exercise any extraordinary degree of care. What was required of the deceased was the exercise of ordinary care and what is ordinary care depends upon the circumstances of each particular case and is such care as an ordinarily prudent person would exercise under the same or similar circumstances.” The latter instruction properly defined “ordinary care.” The first or refused instruction singles out Mrs. Peterson and applies the definition of ordinary care to her alone. A jury could well believe from this instruction that “ordinary care” or “reasonable care” on the part of defendant or its agents or servants necessitated some higher or more meticulous conduct than was required by Mrs. Peterson. We are of the opinion that the “given instruction” which we have quoted, adequately defined the term “ordinary care.” A more difficult question is presented by plaintiff in his insistence that the court erred in instructing the jury that “the burden of proof is not upon the defendant to show that it was not guilty of the specific negligence charged in the complaint, but the burden is upon the plaintiff to prove the defendant is guilty, and also to prove that he and his intestate were in the exercise of ordinary care for the safety of the deceased; and this rule as to the burden of proof is binding in law and must govern the jury in deciding this case. The jury have no right to disregard said rule or to adopt any other in lieu thereof, but in considering the evidence and coming to a verdict, the jury should adhere strictly to said rule.” We agree with the defendant that before discussing the law applicable, we should look at the record. The instructions, of course, are given with a view to the issues before the jury, the evidence and the respective theories. The evidence shows that plaintiff and his family had lived in the premises about four years before the alleged accident. He testified that the carpet was raised from the landing about three inches and that this condition had existed for two months. Though he claims to have made three separate complaints about the carpet, only one was within two months before the accident, namely, the complaint made three or four weeks before April 27, 1936. Our Supreme'Court in Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290, said:

“The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who are likely to act upon such invitation.” Hence, liability of an occupier of premises for injuries befalling an invitee is partly predicated upon an inequality of knowledge of the defect. Defendant argues that “if a defect in the stair carpet in fact existed it is admitted that the plaintiff possessed the same knowledge of it as did the defendant and there was therefore perfect equality of notice to the plaintiff and to the defendant. It is our contention that facts showing notice to the plaintiff in cases of this character may and should be submitted to the jury under proper instructions for their finding as to whether such notice was in fact contributory negligence that bars recovery. We submit that this was one of the issues in this case and that it was proper to instruct the jury as to the pertinent law.” In the case at bar Mrs. Peterson left her surviving her husband and a minor son. Our first impression, on reading the instructions and without having examined the authorities, was that it would be unreasonable to bar the son from recovery because of contributory negligence, if any, of the plaintiff (the father). The leading case apparently is that of Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38. On January 9, 1922, while it was dark, Charles Hazel was driving his automobile south on the Dixie highway. His wife, Deloia, occupied the front seat beside him. A motor bus driven by a chauffeur of defendant approached from the opposite direction. The lights on the bus were intensely bright and Charles Hazel was entirely blinded by them. He switched his lights on and off in an endeavor to cause the chauffeur of the bus to dim his lights. The lights were in his eyes about a minute. Just as Charles Hazel’s car passed the bus, his (Hazel’s) car crashed into a lumber wagon which was going in the same direction. The timbers which were part of the load of the lumber wagon came through the windshield and struck his wife, killing her. Charles' Hazel was appointed administrator and recovered a judgment for $8,000 against the bus company. The Appellate Court reversed the judgment with a finding of fact that “Charles Hazel, husband of deceased, who is one of the persons for whose benefit this suit was brought, was guilty of negligence, and that such negligence contributed to bring about the accident which caused the death of Deloia Hazel, deceased.” There were other facts and circumstances which tended to show that in driving as he did, Charles Hazel was guilty of negligence which proximately contributed to the collision with the wagon. The Supreme Court stated that “if there is evidence tending to sustain the facts found we cannot consider its weight but are bound by the finding of the Appellate Court.” The evidence shows that Mrs. Hazel left surviving her husband and five children, all adults. The plaintiff was the surviving husband. The court pointed out that the husband’s negligence would not have any effect on the cause of action if the wife had lived. “If she had survived the accident and had sued to recover damages for the injury the negligence of her husband in driving the automobile could not have been imputed to her and would not have barred her action. It has long been the settled law in this State that in an action to recover damages for an injury caused by negligence the negligence of a third party cannot be imputed to the plaintiff unless such third party occupies the relation of servant or agent of the plaintiff. . . . The conflict in the decisions of the courts of different States is irreconcilable, and, as we said m the consideration of this question- in Ohnesorge v. Chicago City Railway Co., 259 Ill. 424, if the question were an open one in this court the appellant’s argument would be entitled to serious consideration.” In many States the principle that the contributory negligence of the beneficiary is a bar to the action of the administrator is recognized, but its effect is limited to the negligent beneficiary, and the negligence of one beneficiary which contributed to the injury will not prevent a recovery in favor of another beneficiary who was not negligent. In Ohio it is held that the administrator is a mere nominal party, having no interest in the case for himself or the estate; that the action is for the exclusive benefit of the beneficiaries; that the assessment of damages, though the verdict is for a gross sum, should be made with reference to the pecuniary injury to each separate beneficiary, and that the defense of contributory negligence is available against a beneficiary if by his negligence he contributed to the death of the deceased, but will not defeat the action as to others who are not guilty of such negligence. The statute creating a cause of action for the death of a person caused by negligence, in favor of his widow and next of kin, to be prosecuted in the name of his personal representatives, was passed in 1853. In City of Chicago v. Major, 18 Ill. 349, which was the first case on the subject to reach the Supreme Court, it was held that one of the objects of the statute was to create a right of action and that “the personal representative brings the action, not in right of the estate but as trustee for those who had a more or less direct pecuniary interest in the continuance of the life of the deceased, and who had some claims, at least, upon his or her natural love and affection.” There the Supreme Court sustained an instruction telling the jury that the burden of proof was on the plaintiff to show not only that the city was negligent, but also that the parents were not negligent. In the Hazel case the court said:

“The cause of action is entirely statutory and is a single cause of action. There is no separation of the damages to be assessed by the jury. Their finding is for a single gross amount in an inseparable cause of action, and the contributory negligence of one beneficiary who may be entitled to share in the amount recovered is a defense to the action. ... In many cases it does not appear whether there were other next of kin than the parents, and that question does not appear to have been regarded as important. ... A distinction is sought to be drawn between this case, in which the deceased was an adult and the negligent beneficiary a husband, and those cases in which the deceased was an infant and the negligent beneficiary a parent. There is no distinction which affects the action. The application of the rule to the case of an adult decedent is not an extension of it but merely another instance of its relevancy. The only reason for the defense in either case is the doctrine of contributory negligence. ’ ’ It will be observed that in the Hazel case, as in the instant case, the action was brought by a husband as administrator for the death of his wife because of alleged wrongful acts of the defendant. In the Hazel case the deceased left a husband and five children surviving her, and in the instant case Mrs. Peterson left a husband and one child surviving her. There is no contention in the Hazel case that the five children were guilty of contributory negligence. They were not present at the time of the accident. In the instant case it is not contended that the minor son of Mrs. Peterson was guilty of contributory negligence, yet, in the Hazel case the Supreme Court held that there is no separation of the damages to be assessed by the jury and that the contributory negligence of one beneficiary who may be entitled to share in the amount recovered, is a defense to the action. In the instant case there was competent testimony which would give the jury the right to pass on the question as to whether the plaintiff was guilty of contributory negligence which proximately caused the death of deceased. Plaintiff leans heavily on the case of Holden v. Schley, 355 Ill. 545. From the declaration it appears that A. T. Holden was killed in an automobile collision claimed to have been caused by the negligence of three defendants. Holden was riding in an automobile driven by one Bettie Holden. His next of kin were Lucinda, Ms widow, who was appointed administratrix, and Charles, his son. Apparently Bettie, the driver of the car, would not be a distributee of the fruits of the judgment. Demurrers were interposed to the declaration upon the theory that it was defective in not alleging that the next of kin of the deceased, who would benefit by the judgment, were in the exercise of due care for the safety of the deceased at the time and place of the accident. The demurrers were sustained and after the expiration of 1 year from the death of the deceased, plaintiff amended each count by adding an allegation to the effect that the death of the deceased was not in any manner caused or contributed to by any failure to exercise reasonable care on the part of any of the beneficiaries or next of kin. The trial court held that the amendment to the declaration caused it to state a cause of action for the first time more than 1 year after the death of the deceased and sustained demurrers to it. Plaintiff abided by her declaration and carried her case to the Appellate Court, where the judgment was affirmed. The Supreme Court carefully searched all of the authorities and concluded that they did not involve questions of pleading. In speaking of the Hazel case, the court said:

“In that case it was held that contributory negligence of one of the persons for whose benefit the recovery is authorized is a defense to the statutory action, and this has long been the established law in Illinois, as will appear from a full review of the authorities in the case last mentioned. Many other cases will be found upon an examination of the subject, but it will be learned that in each of them the case either involves an infant, which is necessarily under the control of its parents and for which control the parents are responsible, or else it appears from the pleadings or the proof in the case that the negligence of an adult next of kin directly contributed to the death in question. We have never held, and no case has been cited to us which has held, that in case of an adult person, who is presumed capable of caring for himself, it is necessary to allege anything more than that he himself was in the exercise of due care and caution for his own safety. . . . Proof of the facts stated in the declaration — i.e., that the deceased himself and the driver of the car with whom he was riding, not being one of his next of kin, were in the exercise of due care and caution for his safety and that the accident resulted by reason of the negligence of the defendants or some of them — would have entitled the plaintiff to a verdict and judgment; ... It is to be understood that we are expressly not passing on any question involving a child of tender years, nor upon the sufficiency of any declaration which might show on its face that some one of the next of kin participated in the transaction in question. ’ ’ It will be noted that in the Holden case the occupants of the car were A. T. Holden, who was killed, and Bettie Holden, who would not participate in the distribution of the proceeds of a judgment, should one be recovered. The declaration showed on its face that none of the next of kin of A. T. Holden was in the automobile at the time of the collision. A careful reading of the Holden case convinces us that the Supreme Court did not therein modify the rule announced in the Hazel casein fact, in the Holden case the Supreme Court stated that “it is to be understood that we are expressly not passing . . . upon the sufficiency of any declaration which might show on its face that some one of the next of kin participated in the transaction in question.” It follows that the trial court was not in error in giving the instruction complained of.

Plaintiff further argues that the court gave 25 instructions in behalf of the defendants, 10 of which ended up with the language, “then you should find the defendant not guilty.’-’ Plaintiff also points out that 6 of the instructions given in behalf of defendants are based upon the question of contributory negligence, while only 8 instructions were given by the plaintiff. Plaintiff declares that the giving of these 25 instructions was calculated to impress the jury with the thought that the court was against plaintiff on the question of fact, and that they might readily be misled to believe that in the opinion of the court they should find for the defendants. No hard and fast rule can be laid down as to the number of instructions to be tendered by either party. The practice of giving an excessive number of instructions has and should be condemned. We have examined the 25 instructions given on behalf of defendants and are of the opinion that the court did not commit error in so doing.

Finally, plaintiff charges that the verdict of the jury is the result of passion and prejudice and is not based upon the true evidence in the case, and that the attorney for defendants inflamed the jury by his comments as to the character of services rendered by Dr. Hollis on. An attorney is allowed a reasonable latitude to comment on the evidence. We are of the opinion that the verdict was not swayed by passion or prejudice.

For the reasons stated, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hebel, P. J., and Denis E. Sullivan, J., concur.


author: Justice Hayes.

text:
    Finis E. Downing, Complainant, v. William B. Finn et al., Defendants. William B. Finn, Appellee, v. Centennial National Bank, Appellant.
    Gen. No. 9,223.
    opinion filed October 15, 1940;
    rehearing denied February 5, 1941.
    William T. Gordley and Barber & Barber, for appellant; Oscar J. Putting, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.”


author: Justice Culbertson.

text:
    William Roussin, Appellant, v. Ralph Kirkbride, Appellee.

      opinion filed October 28, 1940;
    rehearing denied February 20, 1941.
    Mason & Flynn and Philip G. Listeman, for appellant; Whitnel, Browning, Listeman & Walker, of counsel; Warnock, Williamson & Burroughs and Gillespie, Burke & Gillespie, for appellee; M. L. Burroughs, William G. "Horsley and Louis F. Gillespie, of counsel.
   Opinion by

Justice Culbertson.

“Not to be published in. full.”


author: Mr. Presiding Justice Wolfe

text:
    Wayne S. Fox et al., Appellants, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 9,583.

      Opinion filed February 7, 1941.
    Weaver & Weaver, of Wheaton, for certain appellant; Harry G. Weaver, of counsel.
    John W. Leedle, of Wheaton, for certain other appellant; John W. Leedle, of counsel.
    Alschuler, Putnam, Johnson & Ruddy, of Aurora, for appellee; Glenn T. Johnson and Sam Alschuler, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On July 24, 1938, between one and two a.m. Glenn Lynch, was driving an automobile of the plaintiff, Wayne S. Fox. Thomas Linton was riding in said automobile as a passenger. They were traveling in a northerly direction on a highway known as Illinois State Boute 59. The defendant, Illinois Central Bail-road Company was operating a locomotive engine drawing a freight train consisting of 68 cars along its track which intersects the said public highway. At the time in question, the said automobile was driven to said tracks and collided with the 66th car of said train. As a result of said collision, the said Glenn Lynch and Thomas Linton were killed, and the automobile of said Fox was greatly damaged.

Wayne S. Fox, Thomas W. Linton, administrator of the estate of Thomas Linton, deceased, and James E. Lynch, administrator of the estate of Glenn Lynch, deceased, the plaintiffs, filed a petition consisting of 13 counts charging that at all times at, and just prior to the time of the collision in question, the plaintiffs’ intestates were in the exercise of due care and caution for their own safety; that through the negligence of the railroad company, the collision occurred, and the plaintiffs’ intestates were killed. The defendant filed a motion to strike plaintiffs’ complaint because it did not state a cause of action, and assigned seven reasons in support of their motion. The plaintiffs filed a motion to strike the motion of the defendant because as they claimed, the motion of the defendant was insufficient because it did not state facts, but merely the conclusion of the defendant. The court overruled the motion of the plaintiffs to strike the motion of the defendant, and sustained the motion of the defendant to strike the petition of the plaintiffs because it did not state a cause of action. The court entered an order dismissing the complaint and assessed the costs against the plaintiffs. It is from this order that the appeal is prosecuted.

Count 1 of the complaint is based on general negligence in an attempt to follow what is commonly known as the general negligence count, or the Jenning’s count.

The second count charges the collision occurred on a dark, foggy and misty night; that such fog, darkness and mist were of such density that unlighted objects, obstacles or vehicles upon said highway at the point of said intersection were not shown or revealed by the headlights of automobiles approaching an object, obstacle or vehicle situate, at or upon said intersection until such approaching automobile was about to come in contact with such object, obstacle or vehicle and charged the railway company with negligence in the management and operation of its train under such conditions.

Count No. 3, charges that there was a device, long known as an automatic signal bell, which was commonly used in crossings of railroads. When the train was approaching the crossing, it would automatically start said signal and the lights would flash and bells would ring in order to warn persons about to cross the railroad crossing of danger of engines or trains or when trains stopped on such highway crossing; that the defendant should have installed such signal lights on their crossing; that the defendant had been notified by the Illinois Commerce Commission several months prior to July 1938, of the necessity of installing such an automatic bell or signal lights; that the defendant refused to install such bells, and on account of the negligence, the accident occurred.

Count 4, is practically the same as count 3, with the exception that it does not allege that the Illinois Commerce Commission had ever notified the defendant of the dangerous character of the crossing and that a signal light should be placed at said crossing. Count No. 5 alleged that it was a damp, foggy and misty night and on account of the atmospheric conditions, the visibility was poor and that the plaintiffs’ intes-tates could not see the train, as they approached it and charged that the railroad company, in violation of the statute allowed the train to stand upon said crossing for a longer time than the statute permitted, namely, 10 minutes, and that the train was allowed to stand upon the said track at said crossing for a period to-wit, 20 minutes, and as a result of such negligence, the collision occurred, and the plaintiffs were damaged. Count 6, is practically the same only differently worded from count 5.

Count 7, charges that neither the Department of Public Works and Buildings of the State of Illinois, nor local authorities had ever erected any signs at or near said crossing showing what was a reasonable rate of speed. Count 8, charges that the train of the defendant was negligently left on said crossing obstructing the road for a period of to-wit, 20 minutes contrary to the statute in such case made and provided. Counts 9,10,11 and 12 are a combination of parts of previous counts.

Count 13 is a long one and contains many of the allegations of the previous counts, but in substance it alleges that the weather at the time of the accident, was dark, foggy and misty; that the first 66 cars of the defendant’s train of 68 cars had pulled past the intersection, and the train had stopped for more than 20 'minutes; that the intersection of said railroad right-of-way and the track of said defendant with the public highway was at the lowest place on the public highway within a distance of one-half mile on either side of said crossing, and that the conditions existing at that time were dangerous and were known to the defendant; that there were no lights or signal bells displayed, and that the defendant gave no warning of the train obstructing the highway, and such acts amounted to negligence on the part of the defendant, was the proximate cause of the collision.

It is first insisted by the appellants that the court erred in not striking the motion of the defendant to dismiss the complaint, as it did not state sufficient facts to inform the court wherein the petition of the plaintiffs ’ did not state a cause of action. We do not think it is necessary to set forth the motion, but assignment No. 2, charges that the complaint is lacking in any. allegation of fact showing negligence on the part of the defendant. This would certainly be a challenge to the sufficiency of the complaint. The third assignment challenges the petition because there are no facts shown that the damage suffered by the plaintiffs was a proximate result of any negligence on the part of the defendant, and fourth, that the complaint in each count thereof, in the affirmative shows a lack of due care on the plaintiffs’ intestates and each of them. Other parts of the motion state that the matter of placing signals at railroad crossings, is wholly under the jurisdiction of the Commerce Commission of the State of Illinois. It seems to us that these facts wherein the count was defective, are clearly called to the court’s attention, and the court did not err in overruling the motion of the appellants to strike defendant’s motion to dismiss the complaint.

The court had occasion to pass on a similar question in the case of Becker v. Schwartz. This case is not reported in full, but is abstracted in 283 Ill. App. 648. The contention was made in Becker v. Schwarts, supra, the same as in the case now before us, namely, that count No. 1, followed the language of the declaration of the Jenning’s case. We pointed out in our former opinion the distinction between the allegations in the Jenning’s case and the case at bar. In the Jenning’s case, it was alleged that, as the car of the defendant was proceeding along Cottage Grove avenue near to the intersection of Seventeenth street, it ran into and struck the carriage in which the plaintiff was riding, while in the instant case it is averred and charged that while the automobile in which the plaintiffs ’ intestates were riding was proceeding along the hard road, it struck a railroad train later which was obstructing the crossing. It is our conclusion that the first count of the declaration was insufficient, as it did not state a cause of action.

In the case of Cash v. New York Cent. R. Co., 294 Ill. App. 389, the complaint filed was in many respects similar to the one in question. The plaintiff was riding as a guest in an automobile on one of the public highways of our State, and ran head on into a freight train standing across said highway at a grade crossing. The petition charges that the crossing was extra hazardous and dangerous in the nighttime because of the location of the track and the road; that it was difficult for the automobile lights to shine on the crossing, as the train stood upon it; that the crossing had remained in a dangerous condition for a period of 3 years or more, which was well known to the defendant, and during that period, several accidents had occurred at the same crossing, and no sufficient signal, or warning devices were maintained or used to give warning to persons crossing, and because the railroad company had failed to perform its duty in placing signals at the crossings, the defendant intestate was killed.

The defendant filed a motion to dismiss the petition, which was sustained by the trial court, and the case dismissed. From this order an appeal was perfected to this court. The Appellate Court held that the petition did not state a cause of action against the defendant and affirmed a judgment of the trial court. In the case of Coleman v. Chicago B. & Q. R. Co., 287 Ill. App. 483, the plaintiffs were riding in an automobile, and ran into the side of a train of cars of the defendant, and were injured. They claimed that their view was obstructed by smoke coming from a slag pile near a mine. The case was tried on the theory that it was the duty of the railroad company to erect warning signs of some kind at or near the crossing, and this, it failed to do and because of their negligence to erect such signs, the accident occurred and the plaintiffs were injured. The case was tried before a jury which rendered judgment in favor of the plaintiff. The railroad company took an appeal to the Appellate Court of the Fourth District. The opinion was written by the late Justice Edwards, who reviewed many of the cases, both in our own, and other States, where the same or similar question had been presented. The court held that the defendant was not liable and reversed the case without remanding.

We do not think that the counts charging the defendants with negligently failing to place warning signs at the crossings in question, stated a cause of action against the defendant. We stated in our former opinion, Becker v. Schwartz, supra, that the Commerce Commission of the State of Illinois has sole and exclusive jurisdiction to order warning signs at railroad crossings. It will be observed in this case that the petition does not charge that the railroad company-violated any statute, ordinance or regulations of the commerce commission, and it is our conclusion that the alleged facts in the present petition are insufficient to'charge that the railroad company violated any such statutes, ordinances or regulations of the commerce commission, and it cannot be said to constitute negligence on its part.

The petition also charges that the defendant violated the statutes of Illinois, by allowing their train to stand on said crossing 20 minutes which is 10 minutes more than the statutory period allowed. In Pennsylvania R. Co. v. Huss, 96 Ind. App. 71,180 N. E. 919, a cáse in which the plaintiff ran into the side of a train of the defendant standing at the railroad crossing. The evidence shows that the night was dark, cool and damp; and at the scene of the accident there was a fog or mist; and the visibility was very poor. One of the allegations of the complaint was that the train of the defendant had been allowed to stand upon said crossing longer than the statutory period. The court, in passing upon this, used this language: “The purpose of this statute is to prevent delay to traffic using our avenues of travel at points where railroads intersect such avenues, and to keep open such ways of communication in order that any person, or persons, desiring to use the same may do so without unreasonable interference. It was not enacted in order to protect persons from damage to either person or property occasioned by collision with a car or cars necessarily obstructing a highway for a reasonable time.” The court further in its opinion uses this language: “Can it be said upon a consideration of the evidence in this case, that appellant in the exercise of ordinary care should have anticipated that, in the natural course of events and according to common experience, the driver of some automobile using the highway which intersects its railroad tracks would or might attempt to cross over the tracks at a time when the same was occupied by a freight car forming a part of one of its trains? Was there any negligence charged in the complaint and proven by the evidence that was a proximate cause of appellee’s injuries? We are of the opinion that these questions must be answered in the negative. Certainly it can not be reasonably said that it is usual for the driver of an automobile traveling over the highways of this state to run into a freight train standing over a crossing; or that such an event is likely to occur. ’ ’

In the case of Overstreet v. Illinois Power & Light Corp., 356 Ill. 378, Overstreet sued the Power and Light Company for damages he sustained when the automobile in which he was driving collided with a street sweeper owned by the defendant, being operated on its tracks in the city of Danville. It was charged that the defendant was negligent in stopping its car on a public street without having it lighted or having a watchman out to warn approaching traffic of the danger. The court in 356 Ill. 383 have this to say: “The first question arising on this record is whether there is any evidence of negligence on the part of plaintiff in error. If not, it was the duty of the court to instruct the jury to return a verdict of not guilty. As we have seen, the first count of the declaration was a general count, which, without specification, stated that the injury was occasioned by the negligent operation of the sweeper by the plaintiff in error’s servants. To sustain a verdict for damages for personal injuries it is incumbent upon the plaintiff to allege and prove the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains and the failure of the defendant to perform that duty, which failure resulted in the injury. (Miller v. Chicago and Northwestern Railway Co. 347 Ill. 487; Bremer v. Lake Erie and Western Railroad Co. 318 id. 11; McAndrews v. Chicago, Lake Shore and Eastern Railway Co. 222 id. 232.) The facts alleged and proved must be such as to bring the right of recovery within some statute or common law rule. (Miller v. Chicago and Northwestern Railway Co. supra.) It is not sufficient that the plaintiff’s declaration allege generally a duty of the defendant but it must state facts from which the law will raise a duty, and it is necessary to show an omission of such duty resulting in injury.”

The court, in their opinion, state that the only ground on which Overstreet sought to sustain the judgment in the case was that the street car company owed him a duty in some manner to warn him of the presence of the snow sweeper in time to avoid a collision, that they neglected to perform that duty. There is no charge of any violation of any statute or ordinance or regulation ; nor do they aver that there is such ordinance or regulation that the street car company should have warned the plaintiff of the presence of the sweeper upon the track. The court reviewed several cases from other jurisdictions and held that there was no duty resting upon the street car company to warn the de.-fendant of the presence of the sweeper upon the track and therefore reversed the judgment of the trial court.

It is our conclusion that the petition of plaintiffs was insufficient, as it did not state a cause of action. The trial court properly sustained the motion of the-defendant to strike the same from the files, and entered judgment against the plaintiffs for costs.

The judgmént of the trial court is affirmed.

Affirmed.


text:
    The First National Bank of Chicago (Assignee of Foreman State National Bank), Appellee, v. C. C. Craig, Appellant.
    Gen. No. 9,592.
    Opinion filed February 7, 1941.
    R. Craig Miller, of Galesburg, for appellant.
    Wallace Thompson, of Galesburg, and Robert P. Perkaus, of Chicago, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On December 26,1939, the appellee, the First National Bank of Chicago, a banking corporation (assignee of Foreman State National Bank,) filed its affidavit in the circuit court of Knox county, Illinois, for a writ of scire facias against C. C. Craig to revive a judgment that the Foreman State National Bank had procured against C. C. Craig on the 14th day of April, A.D. 1931. The affidavit signed by Wallace Thompson, the attorney for the bank, states that the Foreman State National Bank, for a valuable consideration, transferred and assigned the judgment in question, to the First National Bank of Chicago; that this judgment has not been paid, and that the First National Bank of Chicago is now the owner of the said judgment. The last paragraph of the affidavit is as follows: “Affiant further says that a writ of scire facias against the said C. C. Craig should be issued to revive the said judgment, so rendered against him, said writ to be directed to the Sheriff of Knox County to execute and return on the Third Monday of January, A.D. 1940.”

Instead of the clerk issuing a writ of scire facias to revive the judgment, he issued a summons, which is the ordinary summons used in common-law actions, directing the said C. C. Craig to make answer to the complaint in the above-entitled cause. This summons was served on C. C. Craig and proper return made by the sheriff. C. C. Craig entered his appearance in said proceeding, but later, by consent of the court, withdrew his entry of appearance. The defendant, C. C. Craig, failed to file an answer or other pleading in said matter, and on the 9th day of February 1940, a default was entered against him and the court entered an order reviving the judgment, both for principal and interest, due on the judgment to date. It is from this judgment that the appeal is prosecuted.

The appellant contends that the judgment must be reversed because it is not in proper form; that the court erred in including interest in the new judgment, and that the order of the court should have been just a revival of the original judgment. The appellee, in its printed brief, says: “Plaintiff concedes it is not entitled to a new judgment, or a judgment including accrued interest on the old judgment, but is only entitled to a judgment of revivor.” They contend, however, that the judgment is good and, that part which includes the interest, can be treated as surplus-age, and ask that this court strike certain parts of the judgment. As to whether the judgment is defective, we do not decide, as the case must be reversed for other reasons.

Section 55 of the Civil Practice Act, Smith-Hurd’s Ill. Ann. Stats. [Jones Ill. Stats. Ann. 104.055] provides as follows: “Scire facias no longer necessary. It shall not be necessary to use a writ of scire facias, but any relief which heretofore might have been obtained by scire facias, may be had by employing an ordinary civil action at law. ” It is insisted by the appellee that they have followed the new statute, and that the issuance of the summons, the filing of the affidavit and service thereon of the defendant, wére in compliance with the statute. With this contention we cannot agree. Under the old law, in a suit to revive a judgment by scire facias, the plaintiff was required to file his petition or affidavit stating the facts,- and file a request to the clerk to issue a writ of scire facias to the defendant. The writ of scire facias itself, must set forth all of the facts on which plaintiff’s right of action is based, and when it is in its proper form, serves as a declaration in the suit, and it is to this writ that the defendant is required to plead. In an early case of Campbell v. People, 22 Ill. 234, the Supreme Court through Judge Breese says: “We have searched the record in this cause in vain to find the writ of scire facias, but discover none. Under such circumstances we can no more sustain the judgment in this case, than we could in a case where no declaration appears in the record. The office of a scire facias is both that of narr. and process, and the record should show, not by recital, but by its appearing in the record, that the writ was actually issued, giving a copy of it. The record furnishes no such evidence, and the judgment must be reversed.”

In the case of Smith v. Stevens, 133 Ill. 183, on page 192 of the opinion, we find the following: “In these proceedings no declaration is required, (Practice Act of 1872, sec. 26), the writ taking the place and performing the office of a declaration. It follows that the writ should set forth, at least in substance, every fact upon which the plaintiff’s right to have his judgment revived depends. Where a party, by delaying execution, has suffered his judgment to become dormant, a legal presumption against its continued validity is raised, which he must take upon himself the burden of meeting and rebutting. The writ therefore must show not only that he has not had execution of his judgment, but that his damages still remain unpaid, or that his right still subsists. In McVickar v. Heirs of Ludlow, 2 Ohio, 246, in discussing the necessary averments of writs of this character, the court say: ‘They must, therefore, contain everything that is required to constitute a good declaration; or, in other words, they must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for.’ In that case the court held the writ insufficient because it failed to aver that the plaintiff’s judgment was unsatisfied.”

From an examination of these cases, it clearly appears that under the procedure of reviving-a judgment by a writ of scire facias, it is necessary to have the writ issued. As there was no writ of scire facias issued in this case, there was nothing which the defendant was required to answer, as in a suit under the old common law, when there was no declaration filed.

Under the statute, the plaintiff had the right to elect in what manner it would proceed to revive its judgment, and if it had elected to follow section 55 of the Practice Act, it could have filed an action at law and had the defendant summoned in, to answer, but it surely would not be contended that unless the plaintiff would file a petition as required by the Practice Act, setting forth the facts on which the suit was based, that a judgment could be taken by the plaintiff against the defendant, because he did not answer the same. The reason is obvious, as there would be nothing of record by which the defendant could take cognizance to intelligently file an answer.

It is our conclusion that the plaintiff having elected to revive his judgment by the old writ of scire facias, must follow strictly that procedure. Having elected to do so, then failing to have the writ of scire facias issued so that the defendant could answer the same, the judgment of the trial court is a nullity. The judgment of the trial court should be and is hereby reversed.

Judgment, reversed.


text:
    Otto G. Weber, Appellant, v. Daniel Keefe et al., Appellees.
    Gen. No. 9,617.

      Opinion filed February 14, 1941.
    Clyde Smith, of Dixon, for appellant.
    Sheldon & Brown, of Sterling, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The plaintiff, Otto G. Weber, owns a farm in Drainage District No. 1, in Hannehaman township in White-side county, Illinois. The farm is located on the east side of the main drainage ditch at the south boundary of the district, near the outlet of the main ditch into Green River. The defendants are drainage commissioners of that district and also own land in the upper or northern part of the district. On July 11, 1939, the plaintiff filed a complaint against the defendants in the circuit court of Whiteside county, charging that defendants, as such commissioners, had failed to provide his land with proper drainage and protection. He sought to recover damages for the loss he thereby sustained by reason of the levee breaking, and the water flooding his farm and destroying his crops.

The defendants filed their answer and admitted the organization of the drainage district, and the ownership of the plaintiff’s lands. They admit that part of the assessments had been paid by the landowners in the district. They deny that the ditches in question, were out of repair, and the banks of the levees insufficient in height, thickness and strength to withstand the water. They aver that the banks of the levees had been kept in good condition for more than 10 years prior to June 20, 1938 (when the levee broke), and aver they were sufficient to protect plaintiff’s land from overflow. They aver that there was no intentional negligence by the defendants, and the damage, if any, to the plaintiff, was caused by unusual flood conditions.

The case was tried before the court without a jury. The evidence was introduced by both plaintiff and defendants to sustain their contentions. At the conclusion of the evidence, the court found the defendants not guilty, dismissed the complaint, and assessed the costs of the suit against the plaintiff. It is from this judgment that the appeal is prosecuted to this court.

It is urged by the appellant that the court admitted improper evidence, which was offered by the defendants. The reason advanced why this evidence is inadmissible, is because it is immaterial to the issues in the case. It has long been the law that when a case is submitted to the court without a jury, it will be presumed that the judge will consider only the material evidence offered in the case. Plaintiff’s Exhibit No. 6, is a drainage map published by the department of the State government. The court refused to admit this exhibit in evidence. From an examination of this exhibit, we cannot see how the plaintiff’s case would be benefited any by its admission in evidence. We do not think the court erred in the admission of the evidence, or rejection of the exhibit.

It is seriously insisted by the appellant that the judgment of the court is against the law, and the evidence in the case. One of the material issues submitted to the court for his determination, was whether the levee, as maintained by the commissioners, was of sufficient height and strength to protect the plaintiff’s land from high water, under normal conditions. The court, after hearing the evidence, and giving it careful consideration, uses this language in announcing his decision: “The principal fact offered in support of plaintiff’s argument that the dikes were inadequate is that a break occurred in January and as many as eight landowners then urged upon the commissioners that the ditch should be enlarged and the dikes strengthened.

“It does not inevitably follow that the judgment of reasonably prudent men must necessarily be that the dikes were insufficient as soon as the failure occurred in January. Other elements must be considered. Had these dikes been built a short time before and given way in the first test, one might be tempted to conclude that they were inadequate. But when they had stood for at least ten years without a break, a reasonable man would not ignore this experience. He would inquire whether there had been some special circumstances involved other than an inherent defect in design or construction.

“The evidence falls considerably short of establishing any substantial change of conditions which would make new dikes necessary. Cleaning out the ditch - might somewhat expedite the flow of water, but not beyond what it had been when first constructed.

“The burden of proof is upon the plaintiff. Upon weighing the conflicting elements of testimony, this court concludes that plaintiff has failed to establish that the design and construction of the dikes as they existed in 1938, were such that a reasonably prudent man would not so construct them. On the contrary, the preponderance of the evidence indicates that a reasonably prudent man would regard the dikes as adequate for their purpose.”

It is next insisted the commissioners did not use due diligence in patrolling and maintaining the levee. The court found that the commissioners did use due diligence in the maintenance and care of the levees and the ditches; that they patrolled the dikes for muskrats and groundhogs, which infested the levees; that they exercised the same care for the repair and maintenance of the levees, as reasonably prudent men would under the same circumstances.

The defendants claim that the break in the levee was not caused by the lack of care on their part, but was caused by unusual flood conditions. The court, in announcing his decision said: “The defendants offered as an explanation or reason for the overflow in 1938 the fact that the early part of the year had been a season of most unusual and extraordinary flood. The plaintiff took issue with this and offered in evidence his Exhibit No. 7 consisting of statistics compiled by the United States Weather Bureau for that year. This exhibit actually supports the contention of the defendants.

“Apart from the exhibit, it is a matter of common knowledge that in 1938, the entire nation was subjected to a period of unprecedented flood conditions in the spring and early summer. Thousands of acres of farm lands were flooded and many cities suffered large damage from rivers and streams attaining unheard of heights.

“But again considering the exhibit in question, it shows that the latter part of 1938 was unusually dry, but that even so, the year as a whole had an excessive precipitation of nearly four inches for the State of Illinois by reason of the wet months in the early part of the year. The excess was much greater in the vicinity of this drainage district. The exhibit shows that at Walnut, a short distance to the south, the excess was 7.03 inches. To the north, directly in the area of this watershed it was still worse. At Dixon, to the northeast, the excess was 12.50 inches; at Morrison to the northwest, the excess was 12.93, and at Freeport, farther north, the excess was 15.74 inches.”

The court, after hearing all of the evidence and examining the exhibits introduced in the case, arrived at the conclusion that the plaintiff had failed to establish his case, as required by law. Unless this court, from reading the evidence, can say that the trial court’s finding is against the manifest weight of the evidence, we would not be justified in reversing the case. We have examined the exhibits and read the evidence, as abstracted, and it is our opinion that the trial court properly found that the plaintiff had failed to establish his case by a preponderance of the evidence.

The judgment of the trial court will be affirmed.

Affirmed.


author: Mr. Justice Huffman

text:
    Emma R. Richards et al., Appellants, v. North Henderson Grain Company et al., Appellees.
    Gen. No. 9,585.
    Opinion filed February 14, 1941.
    Woolsey, Stickney & Lucas and E. D. Hardy, both of Galesburg, and Hebel & Hebel, of Aledo, for appellants.
    Nelson & Gustafson, of Galesburg, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This is a suit by appellants against certain of ap-pellees to recover for corn placed for storage in the elevator of the North Henderson Grain Company, a corporation. Appellee defendants concerned with this appeal are directors of said corporation.

The complaint alleged that the several appellants delivered corn for storage to the elevator as above indicated and that it was delivered for storage only and subject to .the demand of appellants. It is further alleged that for a number of years prior to the time appellants so delivered their corn, the defendant corporation was insolvent and without funds with which to conduct its business and that its officers and directors (appellees herein) were fully aware of the insolvency of said corporation; that for a number of years prior to the time involved in this case, it had been the habit and custom of the corporation to fraudulently and unlawfully sell corn and other grain which had been stored with it, and. with the proceeds of such wrongful sales the corporation carried on its business; that none of the officers and directors of the corporation,- although knowing of the above practice, made any objection thereto and permitted such improper and unlawful selling of grain to which they had no title, and the use of such funds in the operation of its business; that such officers and directors acquiesced in the continuance of this practice, permitting grain to be illegally sold and the proceeds therefrom placed with the assets of the corporation and used in the general conduct of its business. It is alleged that the corn delivered for storage by appellants was sold by the corporation without the knowledge or permission of appellants and the proceeds therefrom fraudulently appropriated by the corporation. Gross mismanagement as well as misfeasance and negligence was charged against appellees in the operation of the corporation as directors and officers thereof, in that they permitted and acquiesced in the above conduct. Other allegations appear relative to certain portions of the by-laws of the corporation with respect to the conduct of its business and the duties of the officers and directors, which were alleged to have been ignored by appellees. It was alleged by appellants that they had requested and demanded the redelivery of their corn, as provided by the contract, or that they be paid therefor at the market price at the time delivery was requested, all of which the defendants below failed and refused to do.

Appellee directors filed their motion to dismiss the complaint, which motion was in the nature of a general demurrer. The court sustained the motion to dismiss. Appellants elected to stand by the complaint, whereupon the court entered judgment for appellee directors. It is from the judgment of the court in this respect that this appeal is prosecuted. Appellants in said action obtained verdict against the corporation for $7,382, upon which judgment was rendered. No appeal is prosecuted from that judgment.

The question before this court in this appeal is whether the complaint stated a sufficient cause of action to have required the appellees to make answer thereto. While the court will not draw improbable deductions from the allegations of a complaint, yet it is disposed to give the same a reasonable construction. The fair import of the statements of the complaint in this case disclose that the negligent and wrongful acts complained of were a part of a system which had long-been practiced; that they resulted from the insolvency of the corporation and the necessity that it secure cash assets in some manner to carry on its business; and that the appellee directors and officers knew of and acquiesced in such practice in the management of the elevator. Under such circumstances, the acts complained of not being merely isolated acts but pursuant to a practice that is alleged to have been engaged in by appellees over a period of years, the presumption is that the officers and directors would have discovered the wrongdoing if they had been reasonably diligent, and under such circumstances, if there was a lack of knowledge on their part, it would present a case of gross negligence unless properly explained. The misconduct charged in this complaint appears to have been so manifest, due to the fact that it is alleged to have been necessary in order for the corporation to have sufficient cash funds with which to continue in business, that it is not easy to imagine how the directors and officers could remain in charge of the business affairs thereof without being cognizant of the financial condition of the corporation and of its misconduct complained of.

The judgment is therefore reversed and the cause remanded with directions that the trial court overrule appellees’ motion to dismiss the complaint.

Reversed and remanded with directions.


text:
    People of the State of Illinois ex rel. Fred Dosch, Substituted for Louis Schroeder, Deceased, Appellant, v. Harry H. Wise et al., Appellees.
    Gen. No. 9,633.
    Opinion filed February 14, 1941.

      Vernon J. Knox, of McHenry, and C. Russell Allen, of Woodstock, for appellant.
    Paul J. Leitzell, of Chicago, for appellees.
    Irving S. Roth, per se.

   Mr. Justice Huffman

delivered the opinion of the court.

This is a quo warranto proceeding* brought by appellant in the circuit court of McHenry county against appellees to require them to show cause why they were exercising* the right to be officers of the village of Lily Lake in said county. The information was filed on May 5, 1939. It recited that appellees were exercising powers of village officers pursuant to an election held for the organization of said village; alleging that the petition filed in the county court, pursuant to which the election was held, did not contain the requisite number of signatures; and that the election to incorporate the territory as a village was therefore null and void. After certain preliminary proceedings, appellees filed their answer on July 3, 1939. While the matter was thus pending before the circuit court, and on July 12, 1939, the General Assembly passed a validating* act (ch. 24, sec. 358n, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 139.056(2)]) which was for the purpose of validating such proceedings. Thereafter on motion of appellees, the proceedings were dismissed by the trial court. Appellants prosecuted an appeal to the Supreme Court, which court has transferred the cause to this court on the ground that a proceeding to test the right of a person to hold and execute the duties.of such an office does not involve a franchise, and that a review would not lie to that court on direct appeal. (People ex rel. Dosch v. Wise, 374 Ill. 298.)

As above stated this case is based upon the claim that the petition filed with the county court did not contain the number of signatures required by statute, and that therefore the election was void. Such objection is now obviated by the curative act above mentioned, and the court did not err in dismissing the case. The question whether there were a sufficient number of signers is no longer a question for consideration and is nonexistent.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.