text:
    George Velcich and Anna Velcich, Appellees, v. Thomas Malesh et al., Appellants.
    Gen. No. 38,231.

      Opinion filed February 19, 1936.
    Erwin W. Roemer, of Chicago, for appellants.
    Victor I. Ohrenstein and Irene M. Lefkow, both of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

A decree was entered against the defendants in the circuit court on March 7, 1935, from which this appeal is taken. By its terms it removed a cloud upon the title of certain property, compelled specific performance of the delivery of a certain deed and provided for an accounting between the parties and for the entry of judgment at common law.

From the bill of complaint it appears that the plaintiffs and the defendants had traded certain pieces of real estate with each other and the plaintiffs claimed that they were defrauded.

Plaintiffs further alleged that the plaintiff George Velcieh was a poor laborer who could not read or write the English language but only the Croatian language and that the defendants were experienced real estate men who spoke the Croatian language; that they relied upon defendants; that they gave a deed to their property to defendants and thought the defendants were giving them a deed to defendants’ property, in exchange, but, after five years, they found out that they had received a contract for a deed to purchase defendants’ property.

During the several intervening years, between the transaction and the filing of the bill of complaint, plaintiffs allege they continued to pay defendants at the rate of $70 per month and interest, which was in accordance with their written contract to purchase, stating’ that they thought they owned the property and were paying this sum each month to pay off the $6,000 mortgage which was on the property.

Subsequently, suit was commenced in the municipal court by the owners to obtain possession of the property on account of plaintiffs’ default in the payments on the contract for the sale.

From the abstract it appears in evidence that the real estate which the plaintiffs had conveyed to the defendants was incumbered by a mortgage which had been foreclosed and that then the defendants found it necessary to convey the same to the owners of the mortgage for about $600 with the result that the title to the real estate was conveyed into the hands of third parties. The prayer of the bill asks a setting aside of part of the transaction and the specific performance of the balance.

The defendants deny all the charges of fraud as contained in the bill and allege that the transfer of the property was fair and aboveboard and that no deception was practiced upon the plaintiffs in the transfer of the property.

The evidence shows that the plaintiff George Veleich, instead of being a poor laborer, had been engaged in the grocery business and, of necessity, he must have had some business acumen and experience; that he had had several other real estate transactions and was fairly experienced in that regard; that the plaintiffs had been taken to see the building and the property of the defendants by real estate men and were familiar with it and then came back to the real estate office and made their offer which ivas accepted and entered into negotiations as to price and terms which, after a time was agreed to by both sides; that the deeds of conveyance and other documents were executed by November 13, 1928, by the plaintiffs at their home and in the presence of three disinterested witnesses as well as one of these defendants. These witnesses, or at least two of them, testified that the papers were read and translated into the Croatian language and explained to and were understood by the plaintiffs.

The evidence further shows that on March 23, 1931, the loan on the Wells street property which plaintiffs had obtained in the transaction became due and the defendants secured a renewal of the loan thereon at the bank. Plaintiffs went to the bank and signed the renewal of said mortgage, thereby approving the transaction.

One of the significant things about the transaction is the fact the articles of agreement for the purchase of defendants ’ property which plaintiffs claimed they understood was a warranty deed was not placed of record in the recorder’s office until May 2, 1932, some three and a half years after the transaction. If plaintiffs believed that they had a deed to defendants ’ real estate the natural and usual thing for them to do upon receiving it, would be to place it on record within a -reasonable time. In addition to this, for several years the plaintiffs made some 44 interest payments and 28 principal payments which were entered on the back of the contract, which sums were the exact amount of principal and interest which the contract provided should be paid by plaintiffs in accordance with its terms.

Plaintiffs claim that they do not understand the English language and for that reason were at a disadvantage when the exchange of properties took place. The evidence shows that at the time the transfers took place the papers were all read to them in English and explained to them in the Croatian language, which is their native tongue.

In the case of Van Gundy v. Steele, 261 Ill. 206, the court at page 214 said: “To justify a court of equity in setting aside a deed upon the ground of misrepresentations, the fact of misrepresentation must be established by clear proof, must be about a material matter and must be relied upon by the complaining party. If the representation is as to a matter of opinion or a fact equally open to the inquiry of both parties, and in regard to which neither is presumed to trust or rely upon the other, it will furnish no basis for equitable interference on the ground of fraud. ’ ’

In the case of Shulman v. Moser, 284 Ill. 134, the court said: two flats and the other fifteen flats. His testimony shows clearly that he knew what was in the contract and that he could have read it if he saw fit, and it was his duty to do so. Chicago, Rock Island and Pacific Railway Co. v. Hamler, 215 Ill. 525.

“The court overruled an objection of the defendant to a question propounded to Victor Kanter as to whether he understood the contract, and he testified that he could only read a couple of the easy words at the top; that he had only been in the third reader; that the defendant said he must sign the papers, otherwise the building would not be taken good care of; that defendant said he could sign them at home and did not say he could not have them read to him, and that he signed the contract of his own free will. The witness had formerly been in business for himself running a tailor shop, and when the lease was made he owned two buildings, — the one on Franklin boulevard and the other on Wabansia avenue, — one containing twenty-

“The suggestion of counsel that the plaintiff was an illiterate woman, reading and writing the English language with difficulty, and that she signed the notice to quit by means of her mark, is wholly outside of any question involved in the case. Illiteracy is not a defense to a contract, and if a party to a contract cannot read an instrument it is as much his duty to have it read to him before he signs it as it would be to read it before signing if he were able to do so. (9 Cyc. 390; 6 R. C. L. 325.)”

In addition to the testimony showing that the contract had been read to plaintiffs at the time of the signing of same, and later by an attorney who also spoke the Croatian language and who testified without objection that he read, translated and explained the contents of the contract to them, the testimony further shows that plaintiffs had members of their family who read and wrote the English language and had attended school in this country, and if plaintiffs had desired they could have had it read and explained to them by members of their family. It would be a dangerous practice and would almost entirely destroy the sanctity of business transactions if one could, after nearly five years, have contracts voided and set aside because he claimed he was unable to read the English language. Plaintiffs knew at the time of the transaction of their handicap in this regard and it was their duty to obtain such aid and assistance before entering into the transaction as would place them on an equal footing with their opponents or at least give them the necessary information as to what the transaction meant. Plaintiffs at this late day should not be permitted to complain that they were overreached by reason of such a disability which they could have guarded against by the use of ordinary business prudence.

We do not think a satisfactory explanation has been made as to the delay in filing this suit. Even assuming that the evidence shows that plaintiffs did not understand the contract they signed when the transaction was entered into, the evidence clearly shows that it was fully explained to them six months later by their own attorney and plaintiffs should then have immediately filed their suit as was their duty upon discovering the alleged fraud.

In Kanter v. Ksander, 344 Ill. 408, the court said:

“A party to a contract who desires to rescind it for fraud must make his election to do so promptly after learning of the fraud. He must announce his purpose and adhere to it. (Huiller v. Ryan, 306 Ill. 88; Greenwood v. Fenn, 136 id. 146; Hansen v. Gavin, 280 id. 354.)”

From the evidence before us, plaintiffs, not having commenced their suit upon the discovery of the alleged fraud and, having delayed doing so until several years later, are g-uilty of laches.

It is further claimed by the plaintiffs that a fiduciary relationship existed between the plaintiffs and the defendants and that they were taken advantage of by the defendants. Although there is some testimony that they were acquainted with the defendants in a minor social way prior to the transaction, there is no evidence that the relationship of attorney and client, principal and agent, or any of the well known relationships which makes the one a superior or dominant party and the other a dependent servient party, existed and does not place the burden upon the defendants to account to the plaintiffs for any transaction or render the transaction prima facie fraudulent.

The briefs filed here on behalf of the defendants refer to this suit as one for the rescission of a contract, and the briefs filed on behalf of the plaintiffs designate the action by them as one for specific performance. Assuming the latter, it must be noted that specific performance is not a matter of absolute right, but in a large measure rests in the sound discretion of the court to be exercised as circumstances require.

In the instant case the terms of the oral contract of conveyance, which the plaintiff wishes to enforce, differ materially from the written contract in evidence and the proof of said oral contract depends almost wholly upon the testimony of the plaintiffs which is contradicted by several witnesses in many vital particulars. Specific performance of a contract will not be decreed unless the evidence of its terms is clear and convincing. Such a contract will not be specifically enforced unless the terms are clear, certain and unambiguous and either admitted by the pleadings or proved with a reasonable degree of certainty. Quinn v. Daly, 300 Ill. 273; Dreiske v. Eisendrath Co., 214 Ill. 199; Brach v. Matteson, 298 Ill. 387.

We are not satisfied that the plaintiffs have shown a clear right to the interposition of a court of equity to grant them relief by°way of specific performance.

For the reasons herein given the decree of the circuit court is reversed and the cause is remanded for a new trial.

Decree reversed and cau,se remanded.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Lydia Roth, Appellee, v. George A. Roth, Appellant.
    Gen. No. 38,259.
    Opinion filed February 19, 1936.
    Henry G. Hulbert, of Chicago, for appellant.
    John Owen and James C. O’Brien, Jr., both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal in a divorce suit by the cross complainant in which a decree for divorce was entered on a finding by the superior court dismissing complainant’s bill for divorce for want of equity and giving the cross complainant who is the appellant here a decree of divorce on the ground of desertion. Lydia Roth, the cross defendant, was given the care and custody of their two children with $60 a month for their support; $400 for attorneys’ fees and $50 to pay the court reporter; practically all of the family furniture and, further, appointing the defendant as guardian of the estate of one of the minor children.

After the case was heard, evidently there was a change of counsel, and without permission of this court, the latter appears as amicus curiae, although he is of record as solicitor for the cross complainant.

It is quite difficult to find out upon what theory the court below tried this case. Certainly not on any issues made by any pleadings we have been able to find. The bill for divorce was filed on May 8, 1933, by the wife, charging cruelty, to which no answer was ever filed. Later the defendant on July 19, 1934, came into court and without notice or permission filed a cross-bill. No rule was entered upon the complainant to answer the cross-bill and no answer thereto was filed. No issue having been made by either the bill or the cross-bill, the court proceeded to hear evidence, commencing same on May 31, 1934, although on what issues it is difficult to ascertain, and apparently granted relief or at least entered orders affecting every member of the family.

In courts of record the courts and counsel should be very careful to see that a cause is “at issue” by having proper pleadings on file before commencing the hearing of evidence. The allegata et probata, must correspond. Pleadings without proof are of no . avail on final hearing and, by the same token, proof without pleadings is useless. In this court counsel attempts-to defend such procedure by saying that having heard the evidence on both sides the doctrine of waiver applies.

This suit having been commenced before the present Practice Act, section 30 of the Chancery Act, Cahill’s Illinois Revised Statutes, 1931, ch. 22, ¶ 30, was still in force and reads as follows:

“¶ 30. Cross-Bill.] §30. Any defendant may, after filing his answer, exhibit and file his cross-bill, and call upon the complainant to file his answer thereto, in such time as may be prescribed by the court. ’ ’

One of the evident intentions of the legislature was that, in order to obtain an intelligent consideration by a reviewing court of the relative rights of the parties, this section of the statute should be complied with in order to make an issue by written pleadings, and we decline to attempt to consider the points which are urged on each side as to the merits of the cause, as no procedure with which we are familiar was followed. Until the proper pleadings are on file and the issues made to which evidence could be applied, we cannot further consider the appeal.

For the reasons above stated the decree of the superior court is reversed and the cause remanded with directions to place the cause at issue before attempting to hear any evidence.

Decree reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.


text:
    Ella E. Murphy, Appellee, v. Elizabeth C. King, Appellant.
    Gen. No. 38,289.

      Opinion filed February 19, 1936.
    Miller, Gorham, Wales & Adams, of Chicago, for appellant.
    Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from the superior court of Cook county from a personal injury judgment entered in favor of plaintiff in the sum of $10,000. The case was tried before a court and jury.

The plaintiff Ella E. Murphy, a guest of the defendant Elizabeth C. King, was riding in an automobile with the defendant at the time of the accident which resulted in the injury sustained by plaintiff.

The declaration consisted of four counts:

The first count alleges that the defendant wilfully and wantonly drove the automobile so that it collided with another automobile, thus causing the injury to the plaintiff who was her guest;

The second alleges that the defendant wilfully and wantonly drove her automobile westward in 71st street through a closely built-up residence portion of Chicago at a rate of speed in excess of 20 miles an hour;

The third count alleges that the defendant failed to keep a lookout as she approached street intersections and that she wilfully and wantonly drove against another automobile being driven in a northerly direction along Morgan street, at which intersection the collision occurred;

The fourth count alleges that Morgan street was a through street, hut that defendant, without bringing her automobile to a full stop, in violation of a city ordinance, wilfully and wantonly drove westward on 71st street and upon Morgan street, thereby colliding with another automobile which caused the injuries complained of.

The plea was the general issue.

Plaintiff testified that she and the defendant were friends; that defendant had invited her to go for a ride in her automobile in the country; that she had been out with Miss King prior to that time four or five times; that she had never driven a car herself; that defendant drove the car north to 66th street and then west to Normal boulevard and then drove south to 71st street; that they were going between 30' and 35 miles an hour; that when defendant’s automobile reached Halsted street she shot across the street and that she, the plaintiff, said: “My God, there was a car line there”; that when they got on the other side of the street defendant said, “I wasn’t thinking about it; I’m sorry”; that she slowed down for a block or so and plaintiff states that she was frightened; that when they approached Morgan street, which was about two blocks further, plaintiff further testified that she knew there was a stop sign and that she saw that defendant was not going to stop and she said to the defendant, “Stop, Elizabeth, this is a through street”; that defendant did not answer her and that she was going 30 or 35 miles an hour and continued to cross the street; that defendant did not slow down at any time; that the plaintiff saw the other car before the accident happened; that it was coming north on Morgan street on the south side of 71st street and was almost to the curb at 71st street; that there is a stop sign about 20 feet east of Morgan street and it is a shield sign which said “Stop” and then a red light “Through Street”; that at this point there was a narrow vacant lot on the northeast corner but the other three corners are built up 'with buildings. Plaintiff further testified to the effect that there was no obstruction on the side of the street which would prevent one from seeing the stop sign; that there were no cars parked there; that defendant did not stop or slow down when they approached Morgan street; that she, plaintiff, saw the boy who was driving north on Morgan street coming and then everything was black and that she was in pain and became unconscious; that the next thing she knew she was in the hospital; that she had stitches taken in her head and eye; that her hip was broken and that she had two pelvic breaks; that her leg was broken and practically dislocated; that her hip was split open and her right leg was lying open; that her two legs were hurt; that she could not walk for six months; that they put some traction on her broken leg and that she had two steel bandages under her pelvis; that they put a cast under her hip and up under her ribs; that when they took the cast off she could not stand and had to have other treatments; that she was compelled to use crutches and it was not úntil the following May that she was able to use them; that since leaving the hospital she has been under the care of a physician and has had therapeutic treatments; that her left leg is two inches short and that she has pains in her back and that she cannot rest her weight on one foot; that her knee and ankle get swollen; that the muscles “were dead” and that a nurse massaged them.

The testimony of several doctors showed that plaintiff suffered from and still suffers from physical injury and that the conditions are permanent and she will always remain crippled.

The defendant testified that she did not know exactly how fast they were going on 71st street; that she did not look at the speedometer; that she was going not less than eig*ht miles and not more than twelve miles an hour and that before they approached the street she was probably going a bit faster; that as she approached the street she slowed down and shifted to second speed; that as she went into the intersection she saw a car to her right and one to her left; that she could not say how many feet away those cars were, but they were at least a block from the intersection; that she proceeded to go on in second speed but did not pick up speed at all; that they had practically crossed the center of the drive when they were struck; that she had no recollection of plaintiff saying “My God, this is a stop street”; that plaintiff did not request her to stop or anything similar to that; that up until the accident she and the plaintiff were most friendly.

Other witnesses who were disinterested testified that defendant was going 35 to 40 miles an hour when she reached the intersection and did not slow up; that it was a built-up neighborhood and that she did not stop before entering Morgan street.

It is first contended by the defendant that the finding that the defendant was guilty of wilful and wanton conduct is not supported by the evidence. We think there was ample evidence to justify submitting the case to the jury.

It is next contended that the violation of an ordinance does not constitute wilful and wanton misconduct and that the failure to stop at a through street is not wanton conduct and that the ultimate issue in determining whether there was wilful and wanton misconduct on the part of the driver is the driver’s state of mind.

An almost parallel case, 'where the driver of an automobile injured another, is that of Streeter v. Humrichouse, 357 Ill. 234. In that ease a Dodge automobile driven by the defendant was traveling at 35 miles an hour and went over the crossing and struck the switch-man who was riding on the switch engine causing his death. The court in its opinion said:

“With reference to the first contention, the rule is that in passing upon a motion to direct a verdict, if, when all the evidence is considered, with all reasonable inferences drawn from it in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case, the motion should be allowed. (Williams v. Consumers Co., 352 Ill. 51, and cases there cited.) Ill-will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness, Jeaneary v. Chicago and Interurban Traction Co., 306 Ill. 392.”

Here the evidence shows that the defendant drove an automobile at an excessive rate of speed and after she- was cautioned of the imminent danger passed the signs erected by the city commanding her to stop. Even in the face of the protest of her passenger, she not only refused to obey the law, but also did not heed the warning of her friend.

In 2 Thompson on Negligence, 1264, section 53, p. 606, which is cited with approval in Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596, it was said: “What degree of negligence the law considers equivalent to a wilful or wanton act is as hard to define as negligence itself, and in the nature of things, is so dependent upon the particular circumstances of each case as not to be susceptible of general statement.”

In Bernier v. Illinois Cent. R. Co., 296 Ill. 464, the court at p. 470, says: “It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree of negligence the law considers equivalent to a wilful or wanton act. Whether an act is wilful or wanton is greatly dependent upon the particular circumstances of each case. Where the omission to exercise care is so gross that it shows a lack of regard for the safety of others it will justify the presumption of wilfulness or wantonness.”

We do not believe that in cases of this kind that, to be guilty of wilful and wanton negligence as defined in the law, one must necessarily be in the state of mind of a person who has a feeling of ill-will against the injured party and who intends to commit the injury complained of. A conscious indifference to consequences which is shown by an intentional disregard of a known duty necessary to the safety of the person or property of another would come within the definition of wilful or wanton negligence.

In Walldren Express & Van Co. v. Krug, 291 Ill. 472, the court at page 476 said: “Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to he determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury. (Lake Shore and Michigan Southern Railway Co. v. Bodemer, supra.) An intentional' disregard of a known duty necessary to the' safety of the person or property of another, and an entire absence, of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, make a case of constructive or legal wilfulness such as charges the person whose duty it was to exercise care with the consequences of a wilful injury. (1 Thompson on Negligence, secs. 20, 22.) . . . that they saw him but did not sound the horn, slacken speed or make any effort to avoid the collision until just before it occurred, when the machine swerved slightly to the left; that with full knowledge that a collision was imminent they deliberately failed to make any effort to avert it and avoid injuring the plaintiff. In this view of the facts the jury might well have concluded that the conduct- of the driver showed that conscious indifference to consequences and deliberate purpose not to exercise any care, however apparently necessary for the safety of the boy, which charges his employer with the consequences of a wilful injury.”

In the case of Pittsburgh, C., C. & St. L. Ry. Co. v. Kinnare, 203 Ill. 388, cited by counsel for defendant in support of his statement that the mere violation of an ordinance requiring a driver of an automobile to stop, does not prove wilful and wanton negligence, the Supreme Court in that case said: “There are three counts in the amended declaration, and neither of them alleges that deceased exercised any care for his own safety, but they are based upon the theory that he was a trespasser upon the defendant’s right of way, and that his death was caused by wanton and wilful acts of the defendant. They allege that he was in such close proximity to the track that the engine could not be run past him without strildng him, and that the defendant knew of his perilous position and the danger he was in, and ran the engine against him and killed him. Under the allegations of the declaration defendant would not be liable for mere negligence, and could only be charged with liability in case of a watiton oU'wilful'injury. But the-'injury charged is of: that character. The first count charges that the engine was backed without giving any warning of its approach by ringing a bell, as required by an ordinance of the city of Chicago, and it has been held that the mere fact that a train was run in a manner prohibited by an ordinance will not furnish a sufficient reason for holding an injury to be wanton or wilful. (Illinois Central Railroad Co. v. Hetherington, 83 Ill. 510; Blanchard v. Lake Shore and Michigan Southern Railway Co., 126 id. 416.) But the count contains the additional averments that the defendant knew the perilous position of the deceased, and that the backing of the engine without the required warning was wilful and wanton. The second count charges the wanton and wilful starting and backing of the engine without giving any warning or signal, and running against the deceased, knowing his dangerous position. The third count charges that after the engineer saw the deceased and saw him standing in a perilous position he could have brought the engine under control and stopped it, but failed to do so and ran against him. We think the declaration sufficient to support the judgment.”

In the instant case any and all of the series of acts charged in the different counts in the declaration were alleged could have been done with an apparent disregard of a known duty and absence of care “such as exhibits a conscious indifference to consequences.” It may well be that a segregated single act, such as passing a stop light, excessive speed or the non-observance of a through street, if taken by itself, would not show wilfulness or wantonness, but when considered collectively under the circumstances presented, together with the result flowing therefrom, these acts show such a conscious indifference as ^ consequences as to render defendant’s act wilfuland;yffipton. • The definitions of wilfulness and wantonness'in'the decisions in various other States do not differ Materially- from the. Ianguage used by our own Supreme Court and no advantage would be had in quoting them at length.

It is next contended that error was made in instructing the jury regarding the various counts in the declaration and in using the words of the declaration as contained in the various counts in the said instructions. We do not believe this was error. In fast, we think it proper practice to have the court define to the jury the issues made by the declarations and to do it by way of instructions.

In the case of Central Ry. Co. v. Bannister, 195 Ill. 48, the court in considering the instruction which told the jury that if they believed from the evidence that the defendant was guilty of negligence as alleged in the declaration or some count thereof, they should find for the plaintiff, said in its opinion: “Had the instructions copied the allegations no objection could have been urged to them.”

In the case of West Chicago St. R. Co. v. Lieserowitz, 197 Ill. 607, at page 610, the court said:

“The first instruction given for the appellee, in addition to- the general objection already stated, is further objected to upon the alleged ground that it is a recapitulation, hypothetically stated, of the material facts in the case, and that there was inserted in it matter, which had no tendency whatever to prove appellee’s claim. In our opinion the instruction is not justly subject to this criticism. The instruction first states the claim made by the appellee, as stated in her declaration. This feature of the instruction is certainly unobjectionable under the decisions of this court. An instruction, telling the jury that, if they believe from the evidence the plaintiff has proved his or her case, as laid in his or her declaration, they will find the issues for the plaintiff, has been held to be unobjectionable. (Mt. Olive Coal Co. v. Rademacher, 190 Ill. 538, and cases cited.) In view of the holding, that an instruction may refer to the case alleged in the declaration, and as a corollary therefrom, this court has recently said: ‘Had the instructions copied the allegations, no objection could have been urged to them.’ (Central Railway Co. v. Bannister, 195 Ill. 48.)” This position has been upheld in many cases. North Chicago St. R. Co. v. Polkey, 203 Ill. 225; Pittsburgh, C., C. & St. L. Ry. Co. v. Kinnare, 203 Ill. 388; Krieger v. Aurora E. & C. R. Co., 242 Ill. 544.

Particular emphasis is laid upon the claim of the defendant that error was committed in the instructions to the jury, especially the last paragraph where, after explaining the various counts and the plea of the defendant that she denied that she was guilty of wilful and wanton conduct as charged in plaintiff’s declaration and each and every count thereof,- the court concluded:

“These are the issues that you are to decide. It is proper for the plaintiff to join claims of this kind in the same suit, but before the plaintiff can recover she must prove one or more of the counts of her declaration by a preponderance or greater wéight of the evidence. It is not necessary for recovery on the part of the plaintiff that she prove all of the said counts of her declaration. If she proves any one or more of them, by a preponderance or greater weight of the evidence, then you should find the defendant guilty. ’ ’

From a reading of the above paragraph we do not think it is subject to the criticism that the defendant has leveled at it. After explaining the four different counts and the charges that they contained, we think it is quite plain that the jury understood that the separate counts were based on different acts of the defendant or her failure to perform duties as detailed in the said various counts which, if they found from a preponderance of the evidence was done wilfully and wantonly as so alleged, would be sufficient to entitle the plaintiff to recover. In addition to this the jury were fully instructed as to the meaning of “wilful and wanton” conduct as well as having had explained to them by proper instructions their duty in all its various phases. The instructions refused, as tendered by defendant,'were properly refused. We must also presume that juries possess ordinary intelligence and these instructions were plain enough not to mislead the average man. We feel that no error was committed in the giving of these instructions and that the evidence was sufficient to justify the jury in finding for the plaintiff. There is no error appearing in this record which justifies a reversal of the judgment.

For the reasons herein given the judgment of the superior court is affirmed.

Judgment affirmed.

Hall, P. J., .and Hebel, J., concur.


text:
    Anna Atkinson, Appellant, v. In re Estate of Catherine McKeogh, Appellee.
    Gen. No. 38,296.

      Opinion filed February 19, 1936.
    Hubert L. Steed, of Chicago, for appellant; Werner H. Sommers, of Chicago, of counsel.
    No appearance for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order of the circuit court setting aside a judgment in favor of the plaintiff Anna Atkinson and against the defendant.

From the motion filed by the attorney for the defendant in the circuit court, we gather the following:

The claim of the plaintiff against the defendant estate was first filed in the probate court for the sum of $743.25, in which court the claim was disallowed. An appeal was taken to the circuit court by the plaintiff where, on February 25, 1935, the claim was allowed against the estate for the sum of $743.45.

On April 13, 1935, a motion was filed to vacate the judgment of February 25, 1935, and to set same aside, which the court did. No rule was entered upon the plaintiff to file an answer to defendant’s petition and motion so that no issue was made other than the facts adduced in the affidavit upon which the court acted. No briefs have been filed by the defendant in this court so that we have no aid from the estate in our consideration of the matter.

Chapter 3, par. 69, sec. 68, Ill. State Bar Stats. 1935, known as Administration of Estates, reads as follows:

“In all cases of the allowance or rejection of claims by the county court, as provided in this Act, either party may take an appeal from the decision rendered to the Circuit Court of the same county, in the same time and manner appeals are taken from justices of the peace to the circuit courts, by appellant giving a good and sufficient bond, for costs only, with security, to be approved by the county judge; and such appeals shall be tried de novo in the circuit court.”

Chapter 79, pars. 116 to 119 of Article X of the Ill. State Bar Stats. 1935, provides among other things that appeals shall be filed either with the justice of the peace or with the clerk of the court to which the appeal is taken. If the bond is filed with the clerk of the court it shall be approved by him and upon the approval the clerk shall issue a supersedeas enjoining the justice or constable from proceeding any further in said suit, and he shall issue a summons to the appellee to appear on a day designated therein not less than 10 nor more than' 30 days after the issuance thereof, which summons and supersedeas shall be served and returned as summons in other cases.

It shall be seen by this that there are two methods of taking an appeal. One is by filing a bond with the clerk of the probate court which the statute requires the clerk shall forward within 20 days to the circuit court, or if the bond is filed in the circuit court the supersedeas shall issue as well as the summons to be served on the opposite party. In the motion which was filed to vacate the judgment no information is given as to whether the appeal was perfected in the probate court or in the circuit court. If the appeal was perfected in the probate court it becomes the duty of the attorney for the estate to follow the appeal without further notice and if the appeal is perfected in the circuit court, he is summoned the same as in any other lawsuit.

The motion of the attorney for the defendant further sets forth that the judgment was entered for $743.45 in favor of the plaintiff “through the excusable mistake of said administrator and his attorney and through the negligence of the clerk of the Circuit Court of Cook County, Illinois, and through the fraud of counsel for the claimant herein, Anna Atkinson, which if the Court had had knowledge thereof, neither the default nor the judgment "would have been entered.”

Nowhere in the motion does it allege or explain what the excusable mistake of the administrator was, nor of what the negligence of the clerk of the circuit court consisted, nor the fraud of counsel for the claimant.

Not having the benefit of briefs on behalf of defendant in this court, it is quite difficult for us to find out what the defendant’s counsel had in mind when making these allegations.

On April 18, 1935, plaintiff made a motion to strike the motion of the defendant praying for the entry of an order vacating and setting aside the judgment entered on February 25, 1935.

From a review of the abstract as well as the record filed in this court, we do not think there were sufficient facts set forth in the motion to vacate the judgment to justify the trial court in vacating the said judgment of February 25, 1935, by virtue of any authority given by paragraph 200, ch. 110, known as the Practice Act, Ill. State Bar Stats. 1935.

As was said by this court in Lynn v. Multhauf, 279 Ill. App. 210, quoting from the case of Loew v. Krauspe, 320 Ill. 244: “The motion is not addressed to the equitable powers of the court, and it is not intended to relieve the party from the consequences of his own negligence. (Consolidated Coal Co. v. Oeltjen, 189 Ill. 85; Cramer v. Commercial Men’s Ass’n, 260 id. 516.) ”

It is also claimed that the court erred in ordering that defendant pay the plaintiff the sum of $50 covering costs. In the administration of justice the court always has a certain discretion in taxing costs which is not subject to review except where there has been an abuse of such discretion.

From a review of the record we are of the opinion that the trial court should not have set aside the judgment. Consequently, the order is hereby reversed and the cause is remanded with directions to expunge the same from the records of the circuit court and to sustain plaintiff’s motion to strike the motion of the defendant to vacate the judgment and that the same be stricken from the record, and it is further directed that the order be vacated setting aside said judgment of February 25, 1935, so that the same is in full force and effect.

Order reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.


text:
    Frank Victor, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 38,323.
    Opinion filed February 19, 1936.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Martin O. Weisbrod, Harry J. Busch and Seymour Scheffres, all of Chicago, for appellee; Martin O. Weisbrod, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a verdict and judgment of $314.33 recovered before a court and jury in favor of the plaintiff and against the defendant for disability payments under a life insurance policy issued by the defendant on the life of the plaintiff.

The defendant issued its life insurance policy on the life of the plaintiff in 1923. Shortly thereafter the plaintiff filed proof of his total and permanent disability and received payments of $10 a month, which payments were made to him by the defendant for about eight years. The premiums due under the policy were also waived during that period in accordance with the terms of the policy. The last payment made to plaintiff by defendant was on or about July 1, 1932. The policy offered in evidence relating to total and permanent disability reads as follows:

“Provisions as to Total and Permanent Disability-Waiver of Premiums — Monthly Payments to the Insured.
“Disability Before Age 60 — Waiver of Premiums. —If the Insured, after the first premium on this Policy has been paid, shall furnish due proof to the Company, while this Policy is in full force and effect and while there is no default in the payment of premium, that he, at any time after payment of such first premium, while less than sixty years of age, from any cause whatsoever shall have become permanently disabled " or physically or mentally incapacitated to such an extent that he by reason of such disability or incapacity is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, the Company upon receipt of such proof will waive the payment of each premium that may become payable thereafter under this Policy during such disability. Without prejudice to any other cause of disability, the permanent loss of the sight of both eyes, or loss by severance of both hands above the wrists, or of both feet above the ankles, or of one hand and one foot, shall be considered disability or incapacity within the meaning of this provision.
“Disability Before Age 60 — Monthly Income to the Insured. — If such disability shall occur before the Insured is sixty years of age and prior to the maturity of the policy as an Endowment the Company will, in addition to such waiver, pay to the Insured monthly as specified on the first page hereof, the sum of $10 for each $1,000 of the Face Amount of Insurance under the Policy. The first monthly payment shall be made six months after the Company shall have received such proof and subsequent payments shall be made on the first day of each month thereafter during such disability. Interest due on any indebtedness under the Policy may be deducted from such monthly income payments.
“Such waiver of premiums and such monthly payment shall be additional to all other benefits and obligations under this Policy except as to Accidental Death Benefit and the Policy shall be continued in force and the Face Amount of Insurance, less any indebtedness, shall become due and payable at death or maturity in the same manner as if the Insured had actually continued to pay the premiums.
“Disability After Age of 60 — Waiver of Premiums With Reduction of Face Amount of Insurance. — If the disability of the Insured as defined above shall occur after the Insured is sixty years of age, the Company upon receipt of due proof of such disability will waive the payment of each premium that may become payable thereafter under this Policy during such disability, but the Face Amount of Insurance hereunder shall be reduced by the amount of each premium so waived, and any loan and non-forfeiture values shall thereafter be based upon the Face Amount of Insurance thus reduced.
“Recovery From Disability. — The Insured, upon demand by the Company at any time during such disability and before the Company’s liability hereunder has ceased, shall furnish due-proof that he actually continues in a state of disability, as defined above, and in case of his failure so to do the Insured shall be deemed to have recovered from such state of disability.
“In the event that the Insured recovers from such state of disability no further premiums shall be waived and no further monthly payments shall be made, and any insurance under the Policy, exclusive of the Accidental Death Benefit, at the time of such recovery shall be continued in force subject to the payment by the Insured of any premiums falling due thereafter.
“Extra Premium for Total and Permanent Disability Benefits. — The Total and Permanent Disability Benefits are granted in consideration of the payment of an extra — annual premium of $0.70, which is included in the amount of the premium stated on the first page hereof and which is payable at the same time and subject to the same provisions as to payment as the regular premium under this Policy, provided, however, that in no event shall said extra premium be payable on or after the anniversary of the Policy next succeeding the date when the Insured attains sixty years of age.”

The only question involved in the trial was whether or not the plaintiff was totally and permanently disabled in accordance with the terms of the policy.

The plaintiff offered in evidence the testimony of Dr. Lorance showing that in 1928, he was called upon to examine and treat the plaintiff; that he was the insurance representative of the defendant; that he examined the plaintiff and found that he had a temperature of 99% degrees and his pulse was 120; that plaintiff was in bed and was suffering from incipient tuberculosis ; that plaintiff had a rapid heart. The doctor testified further he first saw the patient on March 2, 3928, and that he saw him about two other times in 1928 .and that in the year 1929 he saw plaintiff about once every month; that he had a rapid pulse of 120 and a temperature of 99% and he had a cough and had lost weight; that he heard chronic rales; that he took an X-ray picture of plaintiff’s chest, but that he has not been able to find the picture; that in 1930 he made a stethoscopic examination at which time he could hear no rales, but that his pulse was very rapid; that he made another examination in 1932 and got a history from him as to his condition within a month previous to the examination; that he took X-ray pictures on June 15, 1932; that the X-ray showed a calcified nodule in the left chest about the size of a pea; that plaintiff had thickened bronchial tubes which indicates chronic bronchitis; increased hilum shadows, which indicates infection; that he examined plaintiff further on January 25, 1935, and found a pulse rate of 96 per minute; that the chest was healed and that plaintiff had no temperature; that he found a tricuspid murmur in the same place he found the murmur in June, 1932, and also found evidence of endocarditis and myocarditis; that he advised plaintiff that when his pulse rate was above 90 he should return to bed ; that he saw no evidence of exertion when he walked to his office from the vehicle in which he was driven to the door; that the heart rate was 120 and that plaintiff had heart murmurs; that the infection in the lung did not cause the heart condition; that he had had a very badly infected throat from tonsillar abscesses; that plaintiff had incipient pulmonary tuberculosis; that plaintiff also had a mental condition that accompanied the other diseases; that he had paranoias ideas of persecution, which condition was evidenced by his slugging and hitting his father and he was sent to the Psychopathic Hospital; that there were times when he appeared to be mentally normal; that at times his reactions to questions were those of an acute mental aspect and at other times they were very sluggish, slow cerebration, his ideas were not brought out clearly and he put on all the appearances and symptoms of a neiirosthenia; that in his opinion the man was not able to resume his work.

Several other witnesses testified that he had been sick and referred to his different ailments such as having a bleeding month and nose; that he had lost weight having weighed 160 pounds and that he now weighs 125; that he could not work as any exertion caused him to turn pale, become short of breath and made it necessary for him to quit work; that after working about five minutes he had to sit down; that his breath was short and fast.

The evidence shows that when plaintiff took out the policy of insurance with the defendant company he was working and that he was taken sick in 1924. The evidence also shows that he was treated for tuberculosis in 1932.

Plaintiff testified that before he took sick he did factory work, loading trucks and was stock clerk and that since then he has not been able to work; that he attempted to take a position loading stale bread but that after working three hours he had to go home and go to bed; that he was in bed in the ‘winters of 1930, 1931, 1932 and 1933.

Dr. Soukup was sent by the defendant to examine plaintiff in August, 1932, February, 1933, and August, 1933. He made out a formal report showing that the plaintiff had dementia praecox, arrested pulmonary tuberculosis, a sallow and undernourished appearance and that his hands were cyanotic, which shows a deficient circulation; that some dry rales and a heart murmur systolic in time, were present and plaintiff also complained of epigastric pain in his abdomen; that plaintiff’s pupils reacted sluggishly; that he, the doctor, does not know how far deterioration will take place; that if deterioration is progresisve he will be permanently and totally disabled; that he is unable to state whether recovery will take place. The doctor further states that plaintiff cannot work; that he cannot work because he gets tired; that he certainly would not hire plaintiff to work for him and that he is totally disabled at the present time; that plaintiff shows some evidence of catatonism.

Dr. Soukup later testified for the defense stating that plaintiff could engage in gainful occupation. After making an examination of the plaintiff at the behest of the defendant for his mental condition, he reported that he found no mental deficiency. He did not examine plaintiff as to his heart or lungs or other-vise physically. He expressed an opinion that plaintiff could do gainful labor.

One or two other doctors made reports of different examinations which were quite contrary to their testimony in court.

One of the advantages of the jury system in this State is their ability to listen to the conflicting statements of witnesses and find out wherein the truth lies.

The controlling question here is whether or not the disability of the plaintiff entitled him to recover under the terms of the policy. This man was a laborer who relied upon physical exertion to earn a living.

In the case of Grand Lodge Brotherhood of Locomotive Firemen v. Orrell, 206 Ill. 208, manual labor was described as follows:

“Total inability to perform manual labor to an extent necessary to entitle him to receive earnings is what is meant. One who has power to use his hand or hands at labor for a brief effort only, and who is lacking in power to sustain the effort for a sufficient length of time to make the result thereof of any benefit to him in the way of assisting to his support, is for all practical purposes and in eveiy actual sense totally incapacitated from performing manual labor.”

In Johnson v. Mutual Trust Life Ins. Co., 269 Ill. App. 471, which was a case involving a policy similar to the one in this pqse, the court said;

‘ ‘ These provisions clearly demonstrate that the contention now made by the complainant is not in harmony with nor contemplated by the provisions of the contract. It clearly indicates that the parties intended by this contract that whenever it should appear that the plaintiff was totally disabled and that such disability would, so far as it was possible to ascertain at the time, be permanent, the insured should receive the income and have the premiums waived as provided in his policy, from the time such fact is determined until the insured recovered or died. ’ ’

It is claimed by the defendant that there was no proof of a total and permanent disability and that it is a condition precedent to the payment due under the policy and, in the absence of such proof, the plaintiff is not entitled to recover the payments thereunder, and also that the verdict and judgment are contrary to the manifest weight of the evidence.

The evidence here shows that the plaintiff had incipient tuberculosis, heart disease, bronchitis, dementia praecox, deficient circulation, a deficient nervous condition and several other diseases too numerous to mention. Defendant’s doctor examined plaintiff at one time and reported his condition as permanent disability and afterwards testified differently. Whether or not these diseases were such as to create permanent disability, no one can tell. Everything human in this world is but temporary and we do not think it has yet been vouchsafed to mortal man to know for a certainty what the future holds, be he doctor, or layman. Suffice it to say there is sufficient evidence in the record to justify the jury in arriving at their verdict.

We do not think the rulings of the trial court were harmful to the defendant or the instructions to the jury prejudicial.

It is conceded by the plaintiff that an error was made in figuring the amount due to be $314.33, and that the -amount should be $300 and the plaintiff offers to remit the amount so as to make the total $300. A remittitur order for $14.33 is hereby entered against plaintiff, leaving a balance due plaintiff of $300.

For the reasons herein given the judgment of the municipal court is affirmed with remittitur.

Judgment affirmed with remittitur.

Hall, P. J., and Hebel, J., concur.


text:
    Dr. Jerome S. Shoore, Appellee, v. Emil Jenisch et al., Appellant.
    Gen. No. 38,333.
    Opinion filed February 19, 1936.
    Berger & Newmark, of Chicago, for appellant; Lawrence S. Newmark and Gerald G. Bolotin, of Chicago, of counsel.
    Cohon & Goldstein, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from the municipal court from a judgment of $1,000 rendered aguinst the defendants Jenisch and Shapiro and in favor of the plaintiff Shoore.

In the second amended statement of claim filed on May 25, 1934, it is alleged that on October 15, 1929, Emil Jenisch was president of the Division State Bank and that Clemens K. Shapiro was vice president; that on said date the two defendants, acting for and on behalf of the Division State Bank, falsely and fraudulently represented to plaintiff that two certain gold bonds Nos. 29 and 30 for the sum of $500 each were secured by a trust deed on an apartment building known as the Berenice Apartments and that they represented to the plaintiff that the purchase of said bonds was a good investment and that the property securing the indebtedness was adequate and ample security for said indebtedness; that the defendants knew or should have known that the representations were false and fraudulent; that the plaintiff relied on their statements and purchased the bonds, paying therefor the sum of $1,004.17, being principal and accrued interest; that the defendant Emil Jenisch at the time of the purchase of said bonds from the Division State Bank, informed the plaintiff that at any time he wanted his money back he would give him his personal check for the purchase price; that the premises described in the trust deed are not improved with an apartment building but with a one-story building used for an auto repair and service station; that the plaintiff did not know of the falsity of the representations until he inspected the premises on December 10, 1932; that said premises were not at the time of the purchase and are not now ample and adequate security for the amount of said indebtedness; that a demand was made upon the said defendant, Emil Jenisch, to return the money on said bonds, but that he failed and refused to pay the same; that in 1931, at the maturity of the said bonds purchased as aforesaid, defendant Jenisch induced the plaintiff to execute an extension on said bonds; that on the extension coupons were written the words, “Berenice Apartments” which designation was false and that Jeniseh knew it was false.

The affidavit of merits filed by the defendants denies the charges of misrepresentations and alleges that the plaintiff could have known prior to December 10, 1932, the exact improvements located on the premises; that plaintiff had full access to any information in regard to the securities; denies that he sold the bonds or received any part or portion of the purchase price and denies that plaintiff relied on any statement he made in purchasing said bonds.

On the issues made by these pleadings the jury returned a verdict in favor of the plaintiff in the sum of $1,000 “in tort” and also a special finding ivas made by the jury, as follows:

“We, the jury, find that the defendants, Emil Jeniseh and Clemens K. Shapiro, made false and fraudulent representations and the plaintiff relied on same at the time of the purchase of the bonds in question. ’ ’

Witnesses were introduced on both sides and there was a sharp conflict as to what transpired at the time of the purchase of the bonds.

In the trial of a case when the evidence is conflicting, it is imperative that the rulings of the trial court and the instructions as to the law be without prejudicial error.

The claim of the plaintiff in this case seems to be based upon, first, the misrepresentation as to the security covered by the mortgage in securing the bonds, and secondly, the promise of the president of the bank to pay the money back to plaintiff any time he wanted it.

It was, of course, necessary for the plaintiff to prove the misrepresentations made to Mm with regard to the property and his damage resulting therefrom, which he attempted to do and placed a witness on the stand by the name of (lately and asked him the following questions:

“Mr. Goldstein: Now, Mr. Gately, I would like to ask you to assume a property 50 x 125 feet, one story garage located 4500 on West Addison Street, Chicago, Illinois, in 1929, having a value of eighteen thousand some odd dollars, having a mortgage of $16,000 against it, this building being operated as a garage, and ask you whether or not you have an opinion as to whether the purchase of bonds on that building under those circumstances would or could be a good investment.
“Mr. Berger: I object.
“The Court: He may tell us first whether or not he has an opinion as of October 15, 1929.
‘ ‘ The Witness: Tes, sir, I have.
“Mr. Goldstein: What is that opinion?
“Mr. Berger: I object.
‘ ‘ The Court: He may answer what is his opinion.
‘ ‘ The Witness: My opinion would be that it would not be a good investment.
“Mr. Goldstein: Have you an opinion based upon the same hypothesis as to whether or not that building, the property, was ample security for the mortgage of $16,000 in Chicago in 1929, October 15th? Have you an opinion, first?
“Mr. Berger: I object.
‘1 The Court: He may answer.
‘ ‘ The Witness: I have.
‘ ‘ Mr. Goldstein: What is that opinion, please ?
“Mr. Berger: I object.
‘1 The Court: The same ruling.
1 ‘ The Witness: It was not. ’ ’

Without going further it must be at once apparent that to permit a so-called expert to give his opinion as to the ultimate finding in a case, which was the function of the jury to decide from the evidence, was prejudicial error.

In the case of Lyons v. Chicago City Ry. Co., 258 Ill. 75, the court said: ‘ ‘ The general rule is that witnesses should testify to facts and not to opinions. (1 Elliott on Evidence, sec. 671.) The opinions of witnesses are, in general, irrelevant. A learned writer on evidence has said that if it were the rule ‘that witnesses might be allowed to state not only those matters of fact about which they are supposed to have knowledge but also the opinions they might entertain about the facts in issue, the administration of justice would become little less than a farce. ’ ”

In Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589, the court at page 593 said: “Opinion evidence is admissible only upon subjects not within the knowledge of men of ordinary experience, and upon the ground that the facts are of such a nature that they can not be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them in their relations and comprehend them sufficiently to form accurate, opinions and draw correct inferences from them on which to base intelligent judgments. The opinions of witnesses should not be received as evidence where all the facts on which such opinions are founded can be ascertained and made intelligible to the jury. ... If the expert witness did not know all the facts his opinion would be only a guess. If he did know them, they could be detailed to the jurors and they would be as competent to form an opinion as the witness.”

The question as to whether or not the purchase of a bond would be a good investment, would probably call forth numerous opinions in answer thereto, as different perhaps as there are people of whom the question'could be asked. At best in the instant case it was a.mere conclusion and was one of the ultimate facts upon which the jury was called to decide. The facts regarding the entire transaction, the location of the property, improvements thereon, its value, the amount of the mortgage, the income, the taxes, the expenses and all the other contributing factors, if known to the jury, would give them an opportunity of telling whether it was a good investment or not. Under no circumstances could it be the province of a so-called expert to determine this ultimate fact in advance for the jury. No doubt the jury could be greatly influenced by such testimony, they believing when the court erroneously admitted it that it was a competent way to prove that question. In this we think error was committed.

There are other questions raised in the briefs but, inasmuch as this case must be re-tried, we will not discuss them at this time.

For the reasons herein given the judgment of the municipal court is reversed and the cause is remanded for a new trial.

Judgment reversed mid cause remanded.

Haul, P. J., and Hebel, J., concur.


text:
    Elmer Haas, a Minor, by Albert Haas, His Father and Next Friend, Appellant, v. F. E. Herdman, Trading as F. E. Herdman and Company, Appellee.
    Gen. No. 38,354.

      Opinion filed February 19, 1936.
    Hector A. Brouillet, of Chicago, for appellant.
    Robertson, Crowe & Spence, of Chicago, for appellee; Burt A. Crowe, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This cause came to this court on a petition for leave to appeal, which was heretofore granted. Issue was had by the filing of abstracts and briefs.

The declaration consisting of two counts alleged that on May 21,1925, the defendant was engaged in paving a road and building bridges in Cook county, Illinois, on Route No. 18 (Willow Springs and Flavin Roads) Lyons and Palos Townships; that in doing said work the defendant used explosives and carelessly permitted said explosives to lie on the ground in and about the vicinity in which they were working; that the explosives had a bright metallic covering and were attractive and alluring to children, which was well known to the defendant or should have been known, by the use of ordinary care and that the said defendant failed and neglected to cover or store said explosives and thereby prevent children from playing with them; that at the time of the accident plaintiff was a minor, 12 years of age, and was playing in said vicinity and that as a direct and proximate result, and in consequence of said attractive and tempting explosives being uncovered, unguarded and exposed to view, the plaintiff began playing with the same and while so playing and while in the exercise of such ordinary care as could reasonably be expected of a boy of his age, intelligence and experience, the same exploded in plaintiff’s hand, causing the loss of two fingers and the thumb of his right hand.

Defendant filed a plea of the general issue and a special plea stating that he did not have in his possession, charge or control explosives as charged by the plaintiff, and that no agents or servants of his had any such explosives.

There was a trial before a jury and at the close of plaintiff’s case, the defendant moved for a directed verdict, which was denied. Thereafter, at the close of all the evidence the plaintiff moved for a directed verdict, which motion was denied; thereupon the defendant moved for a directed verdict, which motion was allowed by the court and a directed verdict in favor of defendant was returned and a judgment was entered against the plaintiff on said verdict.

Defendant’s theory as to why the judgment should be sustained is based on his contention that the plaintiff failed to prove that the defendant had any dangerous explosives in his possession, charge or control, or that the negligence on the part of the defendant was the proximate cause of the injury.

Plaintiff’s claim is that there was sufficient evidence to submit the case to the jury.

James Rokus, a witness on behalf of the plaintiff, testified that he lived at Willow Springs and that in going to school he walked along a path known as Flavin Road and as he came to a pump he noticed an article lying in the grass that had a shiny ping and two long wires and that he thought it was a loud speaker for a radio and that he took it with him and walked for about a mile and a half until he came near the home of Elmer Haas, the plaintiff; that the plaintiff walked from his house and met Rokus and that he showed the plaintiff the article he had found; that they looked at it and thought it was a plug for a loud speaker; that plaintiff held it up and that Rokus hit it several times with a rock and it exploded, blowing them both off the bridge and hurting plaintiff’s hand; that he had seen men working on this road and heard explosions, but had never seen them exploding anything; that at 95th street off of Willow Springs Road there was a box that contractors have on jobs, and it had on it the, name of F. E. Herdman.

Frank Ring, a witness on behalf of plaintiff, testified that he resided in Willow Springs; that about the time plaintiff was hurt he was on Archer avenue; that he saw a group of boy scouts carrying dynamite fuses, such as plaintiff’s exhibit A; that he asked the boys if they knew what they were; that he told them what they were and they gave them to him and he threw them in the canal.

Albert Haas, the father of the plaintiff, testified that when he heard of the accident he went down to the culvert and found two wires (plaintiff’s exhibit B) and plaintiff’s thumb nail; that he went to the pump where the fuse was found and found a fuse with long wires attached to it, plaintiff’s exhibit A. -

Thomas Shaughnessy, another witness on behalf of plaintiff, testified that he resided in Willow Springs and was helping a man by the name of Shorty, blow stumps; that they used fuses similar to plaintiff’s exhibit A; that they would bore a hole in the stump of a tree and place dynamite at the base of it and attach two long wires to the ends and that he had a battery box; that when the signal was given he would push the lever down and that would blow out the stump; that he was working for Herdman, the defendant, and his foreman was a man by the name of Shepherd; that he worked only about a week; that they were blowing up stumps about where the pump was; that he went to work the latter part of May, 1925.

The plaintiff, Elmer Haas, testified that he was 12 years of age; that he lived in Willow Springs; that when Eokus showed him what he had found they decided to see what was inside of it; that he held it in his hand and that Eokus hit it with a rock; that it exploded, knocking him down and blowing off his thumb and the first two fingers of his right hand and also taking off part of the hand above the first two fingers ; that he was taken to the Argo Hospital where he remained for about a week.

There was also offered in evidence on behalf of plaintiff a contract between the county of Cook and F. E. Herdman, for the pavement of the road known as Willow Springs Road at the place where this fuse was found.

The defendant gave in evidence exhibit A, being a contract between F. E. Herdman and the Kenwood Trucking and Teaming Company, to do certain excavating and grading work in the vicinity of Willow Springs and Flavin Roads, in Cook county.

Herdman, the defendant, testified that he was a general contractor; that he entered into a contract with the Cook county highway department on April 20, 1925, for the construction of a road known as Flavin road; that his first work was north of Archer avenue placing tile; that he did not do any work south of Archer avenue during the month of May as he could not until the grading was down; that the grading was done by the Kenwood Trucking and Teaming Company; that he did not have any tool boxes there with his name on them; that in September he did have tool boxes there, but none with his name on them; that the blasting of trees on Flavin Road was done by the Ken-wood Trucking and Teaming Company and a man by the name of Shepherd under the Kenwood Company; that he did not have anything to do with the method of grubbing out the trees; that it was not until the latter part of September that he knew that there was any dynamiting being done there; that in the month of May, 1925, all of his work had been north of Archer avenue; that there were no trees or posts there at all; that he was not acquainted with the employees of the Kenwood Trucking and Teaming Company outside of Shepherd; that he never purchased or never used nor had he ever seen any wires or metallic cylinders like plaintiff’s exhibit 1, on the job; that Shepherd had a wagon camp just north of 95th street; that he never heard anything about this accident until after the completion of the job; that the only foreman he had on the job was Walter J. Siebert.

We have set forth the evidence on both sides at considerable length for the purpose of determining whether or not the trial court was justified in directing a verdict. The evidence here shows that a dangerous explosive was left in the vicinity of a schoolhouse, along the road where children were passing going to and from school and boy scouts frequented. From the description of the explosive, it was an attractive curiosity which would invite the attention of children; it was a highly dangerous explosive which, under the circumstances, required the highest degree of care to see that injury would not be caused by lack of diligence in this regard.

In the case of Bunyan v. American Glycerin Co., 230 Ill. App. 351, school children at play found a partially emptied can of nitroglycerin left by the employees of the defendant near a roadside in the vicinity of a pub-lie school building; they took it to school and showed it to the teacher; one of the boys struck the can with a wrench and an explosion followed which resulted in the death of the teacher and several children. This court in affirming the judgment against the defendant said:

‘ ‘ The owner of a commodity so inherently dangerous as nitroglycerin is required to exert the highest degree of care to keep it in close custody to prevent its doing mischief, and that duty never ceases; and such owner is liable for all the natural and probable consequences which flow from any breach of that duty. 22 R. C. L. 165. . . . 25 Corpus Juris 185.
“A person is generally held liable for any injury resulting from leaving explosives in a place accessible to children, or where they are wont to congregate, under circumstances which do not make them wilful trespassers. 22 R. C. L. 166, and cases cited. The act of a child in causing the explosion is generally held not to be such an intervening cause as will relieve the defendant from liability for a breach of his duty. 22 R. C. L. 167, and cases cited.”

The evidence shows that Herdman had the contract for the entire work. The witness O ’Shaughnessy stated that he was working for Herdman and that in May, 1925, they were blowing stumps by blasting with dynamite, using fuses similar to plaintiff’s exhibit A. Plaintiff’s exhibit C offered in evidence was a contract between county of Cook and Herdman for the paving and construction of Flavin and Willow Springs Roads which cover the road where the fuse was found.

The court in the Bunyan case, supra, continuing, said:

“In order to establish liability, the negligence alleged in keeping the explosive must be the proximate cause of the injury. But, since disastrous results from negligence in the care of high explosives may reasonably be anticipated, courts will not look .too narrowly for independent causes intervening "between the injury and the original negligence in keeping. 25 Corpus Juris 186, and cases cited. It was proven, without objection, that following the accident another can was found near the schoolhouse and ten others within a few miles thereof. The can in question, the property of appellant, was found by the children at a place where it should not have been. If any of appellant’s agents or servants, other than Townsend, left the can in the vicinity of the schoolhouse, it was an act of negligence for which appellant should be held responsible.”

It is quite evident that the court was convinced that the letting of the contract by Herdman to the Ken-wood Trucking and Teaming Company, excused him from all liability and responsibility.

In the case of Van Auken v. Barr, 270 Ill. App. 150, the court at page 153, in citing Vol. 39 Corpus Juris, p. 1331, said: “ ‘A very important exception to the general rule exempting the contractee from liability for injuries caused by the negligence of an independent contractor or his servants is that, where the work is dangerous of itself, or as often termed is “inherently” or “intrinsically” dangerous, unless proper precautions are taken, liability cannot be evaded by employing an independent contractor to do it.’ ”

The use of dynamite with fuses attached for the removal of tree stumps, as in the instant case, was inherently or intrinsically dangerous and required that the highest degree of care be used in order to avoid injury. Leaving such dangerous explosives so that they were accessible to children would not indicate such care was used.

We think the court improperly considered the evidence of the defendant in taking the case from the jury. If there is any testimony in the record in favor of the plaintiff which, with all the legal inferences that may properly be drawn therefrom, tends to support the plaintiff’s claim, then the court should not take ‘ the case from the jury.

As the Supreme Court said in the case of Shannon v. Nightingale, 321 Ill. 168:

“Therefore the court may not properly take the case from the jury and direct a finding- for the defendant when there is some evidence tending to prove every essential allegation of the plaintiff’s declaration, merely because, in the judgment of the court, the weight of the evidence in support of some material allegation is not sufficient to sustain a verdict for the plaintiff. If the evidence in support of plaintiff’s allegations is sufficient to make a prima facie case, the court is not authorized to direct a verdict for the defendant because of evidence of contrary facts tending- to an opposite conclusion. On the motion to direct a verdict only that evidence can be considered which is in favor of the party against whom the motion is directed, and that evidence must be considered in the light most favorable to that party, together with all legitimate inferences which may be drawn from it in his favor. In this case, there was the single issue presented by the plea of not guilty,.and the question whether Pratt was the servant of the plaintiffs in error was vital to that issue. The defendant in error made a prima facie case. Contrary evidence was introduced by the plaintiffs in error, but that contrary evidence could not be considered on their motion to direct a verdict in their favor. If the condition of the evidence at the close of the plaintiff’s case does not justify an instruction for a verdict in favor of the defendant, no evidence which the defendant may introduce will justify such instruction except uncontradicted evidence of an affirmative defense. . Evidence contradictory of the plaintiff’s will not-do it. (Balsewicz v. Chicago, Bur lington & Quincy Railroad Co., 240 Ill. 238; Casey v. Kelly-Atkinson Co., id. 416; Pell v. Joliet, Plainfield and Attrora R. Co., 238 id. 510.) ”

In this case the judge denied the motion of the defendant at the close of plaintiff’s evidence for a directed verdict, but at the conclusion of all the evidence found the defendant not guilty. The evidence subsequently introduced by the defendant was in part contradictory to the evidence introduced by the plaintiff and evidently in the opinion of the trial judge was of sufficient weight to overcome the evidence of the plaintiff. In this the court erred. The case should have been submitted to a jury, under proper instructions, and permit the jury to determine the weight of the evidence from the facts.

For the reasons herein expressed, the judgment of the circuit court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


text:
    Frederick G. Klee, Appellant, v. Chicago Trust Company, Appellee.
    Gen. No. 38,424.

      Opinion filed February 19, 1936.
    Rehearing denied March 5, 1936.
    Frederick W. Janson, of Chicago, for appellant.
    Sims & Stransky, of Chicago, for appellee; Otto W. Berg, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal by Frederick G. Klee, plaintiff, from a decree of the superior court dismissing his bill of complaint for want of equity and judgment for costs against the plaintiff upon a report of a master in chancery.

No questions are.being raised upon the pleadings. It is claimed by plaintiff that one Nat Malnick was a real estate agent of Harry Schwartz, deceased, of whose estate defendant is the executor; that the property described in a certain contract was represented to have been situated in Gary, Indiana, on the corner of the intersection of two full section lines and that one of the streets abounding thereon was a boulevard with an electric line and zoned for business purposes ; that all of the representations so made to him were false and untrue; that he relied upon the representations so made in entering into the contract hereby sought to be rescinded.

It is further claimed by plaintiff that the said representations were misrepresentations as to the present, existing and material facts and were made to induce him to enter into the said contract; that the person making the representations either knew that they were untrue or spoke with reckless indifference of the truth or was under a special duty to know the truth; that plaintiff had no knowledge of the falsity of the representations and acted in reliance thereon and that he did not receive that for which he had bargained.

Defendant contends that the contract in the case at bar was entered into by and between the plaintiff and Harry Schwartz, since deceased, on December 4, 1925; that suit for the rescission of same was instituted on March 24, 1931, on the ground of fraud; that the value of the land had decreased from 50 to 60 per cent in the interim and that no action was taken by the plaintiff for the rescission of the contract until after the death of Harry Schwartz, the vendor; that as a result thereof plaintiff is guilty of laches.

It appears from the evidence that Harry Schwartz was the sole owner of the Home Builders & Developers Organization and that Hat Malnick was a salesman for that organization and that a certain contract was entered into between the plaintiff and the Home Builders & Developers Organization through the solicitation of the said Malnick.

It further appears from the evidence that in selling this land to the plaintiff, Malnick wrote on plaintiff’s copy of the contract the words, “Section line, boulevard, electric line” and “business”; that there were two copies of the contract and that Mr. Malnick did not write in “Section line, boulevard, electric line” and “business” on the other copy of the contract; that Malnick told plaintiff that Gary was going to be a big town — put up steel mills and tin mills and that Mr. Insull was going to put up a big power plant and hire about 5,000 people; that Malnick gave the' plaintiff a receipt book and told him to bring it down every time he came to make a payment; that Malnick also said that a lot like this was a valuable lot like 63rd and Halsted streets or Madison and State streets and that such last named property was sold for $10 a foot and now it is worth over $10,000 a foot and we cannot even buy it; that Malnick also told plaintiff that he could double his money if he wanted to sell the lot at any time and that he should give him, Malnick, the resale.

Plaintiff’s mother testified that she talked the matter over with the plaintiff many times and told him that she thought he paid too much for the property; that she told plaintiff she thought he had been cheated.

Frederick Klee, the plaintiff, was permitted to testify without objection and he stated that the first time information came to him that Clinton street was not a section line was about the first part of September, 1930; that he went to Gary one Sunday afternoon and found that Clinton street was not a section line.

When the matter came on before the chancellor with the report of the master, it was agreed that both plaintiff’s copy of the contract and defendant’s copy of the contract contained the following provisions:

“Second party expressly agrees that all representations affecting or relating to said sale and to this contract and to said property are expressed herein and that no waiver or modification of this contract shall be claimed or be of any force or effect unless reduced to writing and signed by second party and by first party, by some agent of first party thereunto duly authorized ; and that salesmen of first party have no authority to modify this contract in any manner.”

According to the evidence, at the time the contract was signed, plaintiff said to Malnick:

“Why Mr. Malnick, you have not included in the contract — (unfinished) I see that it is not inserted in this contract that 5th Avenue is a section line, boulevard, electric line or that the street is 108 feet wide, and it is not on there that Clinton Street is a section line.” Thereupon the salesmen wrote those words on the plaintiff’s copy of the contract.

The evidence further shows that plaintiff signed the contract and paid Malnick $3,250 as a down payment on the purchase price.

According to the terms of the contract the Home Builders and Developers Organization agreed to convey to plaintiff a parcel of real estate 52 feet by 111 feet located on the corner of Clinton street and Fifth avenue in Gary, Indiana, for a total consideration of $6,500, $3,250 of which was paid at the time plaintiff signed the contract and the remainder of which was to be paid in monthly instalments of $25 each until the balance had been completely paid and that plaintiff would then become entitled to a deed to said premises; that plaintiff also obligated himself to pay all taxes and special assessments thereafter levied on the premises.

It appears from the evidence that from the date of the execution of the contract up until June 10, 1930, plaintiff paid to Harry Schwartz the additional sum of $476.98 in instalments of $25; that in September, 1930, plaintiff’s uncle who lived about five miles from Gary, visited plaintiff and he learned for the first time from his uncle that neither Clinton street nor Fifth avenue in Gary, Indiana, were section lines; that plaintiff then visited Gary, inspected the property he had purchased and found that it was some distance away from the nearest section line; that Clinton street adjoining the property in question had not as yet been cut through as a thoroughfare; that the buildings in the vicinity were wooden frame shacks in a dilapidated condition with a schoolhouse and small gasoline station some distance away; that surrounding plaintiff’s lot were about 30 acres of land containing four or five portable schoolhouses; that neither of the streets adjoining the property were section lines, nor was 5th avenue a boulevard; that on 5th avenue in the block in which plaintiff’s property was located were two frame residences and that no business property had been erected.

After inspecting the property plaintiff immediately engaged an attorney to assist him in making an investigation and some settlement with the defendant if the facts warranted it. Plaintiff’s bill of complaint was filed March 24, 1931.

Before the master, plaintiff’s copy of the contract was received in evidence, upon the bottom of which was drawn a plat with the street corner designated thereon, showing that the lots purchased by plaintiff were located on a double section line corner and that Clinton street was a section line and that 5th avenue was a boulevard as represented by defendant’s agent who was selling the property.

In the report of the master which was approved by the chancellor he found that the plaintiff was entirely inexperienced in business matters; that he had very little education at the time of the transaction in question and was employed as a laborer in a dairy; that Malnick represented to plaintiff that the lot in question was located on a double section line corner, that Clinton street was a section line and that Fifth avenue was a boulevard; that the contract provided in part as follows:

“Second party expressly agrees that all representations affecting- or relating to said sale and to this contract and to said property are expressed herein and that no waiver or modification of this contract shall be claimed or be of any force or effect unless reduced to writing and signed by second party and by first party, by some agent of first party thereunto duly authorized; and that salesmen of first party have no authority to modify this contract in any manner.
“Second party expressly states that second party knows the contents of this contract and also that second party has examined the location of said property and finds the same to be as shown on the diagram below.”

From these two clauses in the contract the further finding was made:

“That under the terms of said contract said statements were not binding upon said Home Builders & Development Organization; . . . ” If that were true, to hold that one who by his fraud induces another to sign a contract which contains a clause that no fraud has been committed, it would protect every scoundrel and confidence man in his nefarious schemes. All he would have to do, by his fraud and deception, would be to obtain the signature of his victim to the contract and he would be safe from interference. In other words, by his own fraud he would protect himself from the consequences of the fraud which he commits. As was well stated in the case of Miller v. Nydick, 254 Ill. App. 584, wherein the court at page 587, said:
“To hold that one by fraudulent representations procures the signature of another to a contract will be immune from a suit to rescind the same because the contract which itself was obtained by fraud states that no fraudulent representations were made, would paralyze the arm of a court of equity. Such is not the law. Fraud vitiates everything it touches, and a complainant is not precluded by reason of the fact that a defendant who defrauded him succeeded, as a part of the fraud, in getting a written statement that there was no fraud. This might show the skill of the operator and the gullibility of his victim, but a court of justice is not thereby estopped.”

The master further found that Clinton street is not, as a matter of fact, a section line and Fifth avenue is not a boulevard; but further finds that the complainant had ample opportunity to make an inspection of the property within a reasonable time after the execution of said contract; that he waited more than five years before taking action; that in the meantime because of the depression the value of property had greatly depreciated; and furthermore, Harry Schwartz had died and the master therefore concludes that the complainant had been guilty of laches.

In approving the above finding the trial court was in error. The facts are that the plaintiff in this case was not familiar with the location of the lots which he purchased in Indiana or as to their value; that he was busy working in Chicago and that he relied upon the defendant’s representations and that because he did not go within a reasonable time to Gfary, Indiana, and find out for himself that he had been swindled that, consequently, he is charged with being guilty of laches.

The rule with regard to laches is that where a transaction takes place concerning the sale of property and the property is present, so that both have an equal chance of knowing with what they are dealing, then if defrauded the plaintiff will be precluded from relief if he does not take steps within a reasonable time thereafter to rescind the contract. But, where the property is distant so that at the time the transaction takes place he is unable to view the premises, he then has a right to rely upon the statements made by the vendor of the property. There is no duty upon the purchaser to view the premises within any particular time and it will not amount to laches if he does not do so. It is only after he has the knowledge that he has been defrauded and delays in taking action that the rule as to laches becomes operative. As was said in our Supreme Court in Borders v. Kattleman, 142 Ill. 96, at page 103:

“Where the sale is of property at a distance, so that the purchaser has not the means at hand of ascertaining the truthfulness of the vendor’s representations, the vendee may rely upon their truth, and have redress if they are shown to have been materially false. (Smith v. Richards, 13 Pet. 26; Maggart v. Freeman, 27 Ind. 531; Harris v. McMurray, 23 id. 9; Ladd v. Pigott, 114 Ill. 647; Savage v. Stevens, 126 Mass. 207.) Here, as it appears, appellee did not have the ability to make any proper examination of the land without further time. Appellant, it would seem, was imperious in his demand that the transaction be closed at once, having first induced appellee to believe, as before stated is shown by the evidence, that he was in danger of losing his money unless he took the Crozier note and mortgage.”

In the case at bar because some five or six years intervened between the time of the sale and the time when suit was commenced, it is claimed that laches intervened and prevented relief. But the facts were that plaintiff was without knowledge of the fraud and it is only after full knowledge of fraud that laches is applicable. As was said in Regan v. Grady, 343 Ill. 423, 424:

“Delay will not bar relief where the complainant has been ignorant of the fraud as to which relief is asked, as the duty to institute suit arises only upon the discovery of the fraud, and a delay of several months in filing the bill after the discovery of the fraud will not bar relief, where the complainant immediately notified the defendant of his intentions and no adverse party is prejudiced by the lapse of time between the discovery of the fraud and the institution of suit.”

In this case the first intimation of the fraud occurred about the month of September, 1930. Plaintiff immediately hired a lawyer and began making an investigation of the records in the engineer’s office at Gary and from others, and several months later made a demand upon the defendant for the rescission of the contract. Suit was commenced in March, 1931. We do not think that this showed lack of diligence on the part of the plaintiff and he should not be prevented from having his relief in a court of equity because of such a short lapse of time.

We are satisfied from a review of the evidence that the fraud practiced upon the plaintiff was entirely proven and that all the allegations of his bill of complaint were sustained by the proof in the record. We are, therefore, of the opinion that the trial court erred in dismissing the bill for want of equity.

For the reasons herein given the decree of the superior court is reversed and the cause is remanded with directions to enter a decree in favor of the plaintiff not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

Hall, P. J., and Hebel, J., concur.