text:
    Jeanne Suppe et al., Appellees, v. Albert Sako et al., Appellants.
    Gen. No. 9,678.

      Heard in this court at the May term, 1941.
    Opinion filed August 7, 1941.
    Rehearing denied October 7, 1941.
    Charles H. Borden and Paul F. Pomeroy, both of Chicago, for appellant C. A. Simmons.
    David Alswang and Ralph M. Schwartzberg, both of Chicago, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

Appellants are three tavern keepers and they appeal from judgments of the circuit court of DuPage county rendered against them and one Albert Sako, driver of a car, in an automobile accident case. Appellees brought suit to recover damages which they alleged they sustained by reason of an automobile collision and based their right to recover under the provisions of the Dram Shop Act. Their complaint alleged intoxication of Sako caused by liquor purchased from appellants, and that he was the driver of the automobile which collided with the car owned by appellee, James A. Kluckhohn, in which the other appellees were riding. A jury trial resulted in verdicts for Jeanne Suppe for $7,000, for John Mohr for $7,000, for Richard Kluckhohn for $600 and for James A. Kluckhohn for $300. Upon these verdicts, judgments were rendered after James A. Kluckhohn had remitted $60.

Appellees’ counsel filed an affidavit showing the defense was being conducted by named insurance companies, doing business in DuPage county, employing numerous clerks, stenographers, investigators and attorneys. It asked leave to inquire of the jurors on voir dire whether they had any financial or other interests or were policy holders in either of the companies. Counter affidavits were filed to the effect that the stockholders in each company are nonresidents, but nothing was stated as to employees or policy holders. The court permitted appellees’ counsel to ask one question of the jurors collectively, whether any of them were employed by or interested in any way as policy holders or otherwise, and whether any members of their families or immediate friends had any interest in the named companies. The question followed the language of the inquiry in O’Neal v. Caffarello, 303 Ill. App. 574 and under the ruling in that case and in the leading case of Smithers v. Henriques, 368 Ill. 588, there was no error in permitting the inquiry.

The evidence discloses that the plaintiffs Jeanne Suppe, John Mohr and Richard Kluckhohn were respectively 20, 21 and 20 years of age. A short time before the accident each of them was a college student. Mohr had four or five years musical education and at times had played a piano in night clubs. Miss Suppe, who lived in Ohio, was visiting her grandmother in Naperville at the time of the accident and Richard Kluckhohn was employed at a filling station there. The accident happened about 11:00 p.m., May 6, 1939 on Ogden avenue at the Yender farm east of Naperville. James Kluckhohn is a brother of Richard and owned the Ford car involved in the collision. Richard had borrowed it from his brother James and he and John Mohr had supper that evening with Jeanne Suppe at the home of her grandmother. From there they went to a ten-cent store, then drove -to Aurora, returning to Naperville about ten o’clock without leaving the car. At Naperville they each had a hamburger and a glass of coca cola at a candy kitchen. They stayed there about forty-five minutes and then drove to Ogden avenue, a four-lane highway, along which they were proceeding east when the accident happened. Mohr was driving, Jeanne Suppe was on the front seat with him, and Richard Kluckhohn was on the rear seat. The latter testified they were driving in the southermost lane, between 35 and 40 miles per hour; that when he first saw the Sako car it was 30 feet in front of him and he saw two silver disks; that the next thing that happened was the crash; that none of the three had any alcoholic liquor that evening; that they did not pass any car after they left Naperville; that the driver of their car did not apply the brakes or turn to the right or left; that the road was open; that he did not know whether there were any cars ahead of them in the outer lane, but that they did not attempt to pass any car just before the accident. Mohr and Miss Suppe were severely injured and unconscious some hours. They both testified that they did not remember anything about the occurrence after they turned right into Ogden avenue and a qualified physician testified that a sudden or severe shock can so affect the mind as to completely blot out a recollection of anything that may have transpired or occurred just previous to the time the shock was received.

Mr. Sako examined by counsel for appellees under section 60 of the Civil Practice Act, testified his occupation is a building trades laborer, but that he was unemployed on the date of the accident; that he took two men, Messrs. Sulski and Janofski, to their job at Summit that morning, arriving there about ten o ’clock; that he had one drink of whiskey from a half-pint bottle purchased by Janofski on the way to work; that the job was finished about one o’clock, but they had to stay until about 4:30 to get their pay, after which he started home with them; that they reached the tavern of appellant Adams about 5:30 in the evening and each had two ten or twelve ounce beers; that he took Janofski home and after awhile they all went to the tavern of appellant Stupay, and each had a bowl of soup and one more beer, but he had no whiskey, and they left Stupay’s tavern about six o’clock; that they then did some shopping in Downers Grove and he took Janofski home about nine o’clock; that he and Sulski left the home of J anofski about 10:30 and went to the tavern of appellant Simmons, where each had two beers; that he had no whiskey and left there about five minutes before the accident; that he was driving about 35 miles per hour; that he first saw appellees’ car about 150 feet away when it came from back of another car, trying to get into the inner lane, and coming about 50 miles per hour; that the witness went into his inner lane because he had to turn south about two blocks away to get onto his home street, and turned in on account of traffic while he had an opportunity ; that his car was north of the center line of the pavement, and he could not say whether appellee’s car crossed that line; that after the accident somebody pulled him off the highway. He admitted he had previously testified on the taking of his deposition that appellees’ car was traveling nearer 35 than 40 miles per hour. When he was called by appellants as their witness he said he did not remember whether he had previously admitted he was driving while under the influence of intoxicating liquor and testified that he did not know whether he was or was not under the influence of intoxicating liquor at the time of the accident, but that he was no drunkard and was in the habit of taking five or six glasses of beer daily, and was not intoxicated at the time of the accident. Appellants respectively corroborated his testimony as to the number of drinks taken at their taverns and testified he was not intoxicated when he left their premises. Appellant Adams, in his testimony, said Sako and another man were having a discussion at his tavern about a union and were talking loudly shortly after five o ’clock in the evening. The evidence further discloses that police officers, by means of a searchlight, found Sako after the accident lying down in a field about 200 feet away from the point of collision. Eichard Kluckhohn and four disinterested witnesses who saw Sako shortly after the accident testified that in their opinion he was intoxicated.

The testimony shows the James Kluckhohn car was worth $240 and upon the motion for a new trial he voluntarily remitted $60 of the $300 verdict. Appellants argue that the amount of the verdict as to the car and the large amounts of the other verdicts in favor of appellees show the verdicts were all capricious, arbitrary and in disregard of the facts. As to the car, the jury may have felt the owner was entitled to the $60 for loss of its use. Whatever harm was done to appellants by that verdict was eliminated by the remittitur. The evidence is that Mohr suffered fractures of the nose and cheek bones, requiring 35 or 40 sutures, and a comminuted fracture of the jaw that required it to be wired together for eight weeks, during which time he could not take solid food. He had punctures in one hand and an injury to the motor nerve of the left arm which caused it to shrink in size for a year, with weakening and impairment of the use of that arm and his hand. In addition, he suffered a severe nervous shock and concussion. Miss Suppe’s nose was crushed, her lip cut through, requiring eight sutures. Her back and leg were injured. She had to breathe through her mouth and at the time of the trial was still under treatment for her nose and back. A doctor testified her nose will probably require two additional operations. Eichard Kluckhohn’s injuries were not so severe, but the evidence shows the verdict of $600 is not excessive. In view of the evidence, we do not believe that the verdicts are excessive and the evidence does not show they are capricious, arbitrary or in disregard of the facts.

The claim that the court erred in permitting three witnesses to testify that in their opinion Sako was intoxicated is without merit. Tender based his opinion upon the way Sako walked when the police officers brought him in from the field. Flanders’ opinion was formed from watching him walk and observing his manner as he talked at the police station. The witness Lange testified he smelled Sako’s breath, observed his demeanor as he talked, noticed the condition of his eyes and his walk, and based thereon, he formed an opinion that he was intoxicated. In City of Aurora v. Hillman, 90 Ill. 61, relied upon by appellants it appeared that Hillman was walking on a sidewalk and his foot accidentally went into a hole when a loose plank in the walk was tipped up by his companion. A witness for the city testified he- saw Hillman down on the sidewalk with liquor spilled from his dinner pail, but-could not swear he was intoxicated. He was then asked whether from what he saw at that time, Hillman or his companion were under the influence of liquor. The court said the question called for an opinion, not from personal appearance or conduct of the men, but merely from the fact the witness saw Hillman down on the sidewalk with liquor spilled from his pail, and there was no error in sustaining an objection to the question. That ruling obviously has no application here where the opinion of the witnesses was based on the personal appearance of Sako. The applicable doctrine, as stated in the Hillman case, is: “A witness, by observation and by the exercise of his perceptive faculties, his five senses, can learn and know facts, and such facts he may state. He would not be confined to a detail of the combination of minute appearances that have enabled him to ascertain the fact of intoxication. The details of conduct, attitude, gesture, words, tones, and expression of eye and face may be stated by him, or he may state the fact of intoxication, a fact which he can ascertain by personal observation, as he ascertains other facts.” In Dimick v. Downs, 82 Ill. 570, the court said: ‘‘Whether a person is nervous and excited, or calm, or whether drunk or sober, are facts patent to the observation of all, and their comprehension requires no peculiar scientific knowledge.” There was no error in admitting the testimony of the witnesses mentioned.

Dr. Knnsch, who made tests of Sako at the police station for sobriety, testified he was not totally drunk, but was under the influence of liquor to such an extent that he could not safely drive a car; that he could not walk a straight line very well, his pupillary reflexes were sluggish and he tallied slowly and with an effort; that he put stitches in Sako without the patient showing any signs of pain, which might indicate he had an awful lot to drink or was stunned in the accident. While Salto and the tavern keepers testified he was not intoxicated, they are interested parties. Whether or not a person is intoxicated is a question of fact for the jury and it was their peculiar province to decide from all the evidence where the truth lay. (People v. Schneider, 362 Ill. 478.) The fact that Sako had a cut on his chin, a pain in his chest for which Dr. Kunsch strapped him, a cut on his left shin and minor bruises on his hands and knees together with his claim that his condition after the accident was the result thereof, are not convincing that he was not intoxicated, in the light of the testimony of the disinterested witnesses. The evidence sufficiently upholds the verdict that Sako’s intoxication was the proximate cause of the accident. Whether the liquor purchased from appellants was the cause or partial cause of his intoxication was also a question for the jury. While Sako testified he had only one drink of whiskey about ten o’clock in the morning, the jury could consider that he was a drinking man and was with the man all day who had the whiskey. Whether Sako told the truth about it and whether he and appellants told the truth about the drinking in their taverns was for the jury to decide. He was not corroborated except by appellants. He was drinking and talking loudly in the Adams tavern and the jury could well have believed that he was then starting toward becoming intoxicated, and they evidently concluded the beer purchased there and from the other appellants caused his intoxication. We see no reason to disturb the finding.

It is urged that the trial court erred in refusing to give five peremptory instructions to the effect that appellees could not recover if they were guilty of contributory negligence. The complaint charged willful and wanton misconduct on the part of Sako. It is elementary that contributory negligence is not a defense to such a charge. That charge, was in issue, and the court refused appellants’ motion to strike it at the close of all the evidence. The refused instructions were offered by all the defendants, including Sako. Appellants offered no instruction on their own behalf only and for this reason alone the instructions were properly refused.

The testimony shows that none of appellees had taken any intoxicating liquor, and there is no testimony tending to show they had been in any place dealing therein. The innuendo that they were intoxicated is wholly unwarranted by anything appearing in the record.

On cross-examination of Dr. Boon, the court refused to permit him to refresh his recollection as to Miss Suppe’s increase in temperature from a hospital record not made by him. There was no error in such refusal. (Diamond Glue Co. v. Wietzychowski, 227 Ill. 338.) Nor was there any error in sustaining an objection to the question asked of Tender if he had ever been drunk, nor in striking out and sustaining objections to testimony of Mohr on cross-examination with reference to whether the places where he had been employed to play the piano sold liquor or were taverns. None of such testimony could have any bearing upon the issues in this case.

Appellants had a fair trial, the evidence justifies the several judgments, and there is no reversible error in the record. The judgments are affirmed.

Judgments affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Harvey T. Beery, Appellee, v. Ralph Y. Breed, Administrator of Estate of Nellie M. Breed, Deceased, Appellant.
    Gen. No. 9,683.

      Heard in this court at the May term, 1941.
    Opinion filed August 7, 1941.
    Rehearing denied October 7, 1941.
    Thomas J. Welch and Vera M. Binks, both of Kewanee, for appellant.
    James H. Andrews, Gregg A. Young and Harper Andrews, all of Kewanee, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This cause is here by appeal from a judgment of the circuit court of Henry county for $10,000 as damages in an automobile accident case. At the close of the plaintiff’s evidence, the defendant’s motion for a directed verdict was denied, he offered no. testimony, and the case went to the jury on the testimony of the plaintiff’s witnesses alone.

The original complaint was against Robert B. Keeler. Appellant was added as a defendant, with an averment that Keeler was driving the Breed car as the agent or servant of Kellie M. Breed. The answer denied .this charge, but it is not questioned here. Keeler was not served and is not a party to this appeal.

Under the claim that the court erred in denying appellant’s motion for a new trial it is urged that the evidence is not sufficient to show appellant’s intestate or the driver of her car were guilty of the negligence charged or that appellee was in the exercise of due care for his own safety. In a prior case appellee’s wife recovered judgment against appellant for $5,330 as damages for injuries received in the same accident. The judgment was affirmed by this court. (Beery v. Breed, 309 Ill. App. 433.)

The accident occurred on October 14, 1938, about 3:15 p.m. at the Howard Schoolhouse curve on U. S. Route 6, about five miles west of Geneseo. Route 6 is an east and west highway. It curves to the south around the schoolhouse. The Beery car was traveling northwesterly on the curve and the Breed car southeasterly. Appellee, his wife and their son Harvey Lee Beery, nine years old, were in the Beery car. It was being driven by appellee. In the Breed car were appellant’s intestate, Nellie M. Breed, her daughter, Audrey Breed, and Robert B. Keeler, her grandson. The latter was driving the Breed car. As a result of the accident appellee, his wife and Robert B. Keeler were severely injured. Nellie M. Breed and her daughter died from their injuries soon afterward.

The testimony on behalf of appellee clearly shows that at the time of the accident he had driven oft the right or northerly edge of the pavement about two feet in an attempt to avoid the Breed car, which came down that side of the slab and crashed into the Beery car. Appellee’s son testified he first saw the Breed car coming fast over a rise in the road to the west; that he looked at a house and barn, and when he looked back the Breed car was right there, and that appellee turned off the road just before the witness saw the Breed car the second time. Two witnesses, Johnson and Bell, who arrived after the accident, testified there were tire marks in the dust on the right-hand side of the pavement about, two feet from it, leading back fifty feet from the Beery car. The testimony of other witnesses shows that after the accident both cars were north of the center line of the pavement. Slight differences in their testimony as to the exact location of each car are only such as are usual in such cases. None of them are of any importance. There were some scratches on the pavement north of the center line, running northeasterly toward the Beery car, with the appearance of having been made by a car frame. The argument that they were made by the Beery car and show it was not off the pavement is not supported by any fact in evidence. The testimony on behalf of appellee clearly sustains the negligence charge and his due care.

Appellee is a barber thirty-six years of age. Prior to the accident he was in normal physical condition and in good health. His injuries consisted of cuts and bruises on his body, his left hip was partially dislocated, and his nose was crushed almost level with his face, which was badly lacerated. The tissues were pretty well severed. His upper jaw was fractured, extending through the eye socket, and was loose like an artificial plate. Several teeth were knocked out. He was in a hospital two weeks. His jaws were wired together for three months and he was unable to take solid food for four months. The jaw was still somewhat immovable at the time of the trial about a year and a half after the accident. His left eye bulged with an exophthalmic aspect. He testified his face is numb, his eye is sore and drains continuously at the corner, with a blinking and eye strain; that his nerves are jumpy; that he has a stomach ailment and is restless at night; that he was unable to work for four or five months and could only partially superintend his shop for three or four months more, and cannot now do a full day’s work. Medical testimony shows the conditions are permanent, and that his wife is physically and mentally incompetent as a result of her injuries. The complaint includes a claim for damages on account of the loss of her services. The record shows he employed six physicians and surgeons in treating his injuries, and is still under medical care. He paid $664.85 for his hospital, nurse and doctor hills, and still owes some of the doctors. He paid approximately $800 for help at home. His car was worth $400, and after the accident he was allowed $35 or $40 for it in a trade for a new car.

Appellant urges that inasmuch as he introduced no evidence, repeated comments by appellee’s counsel in his closing argument upon the failure to do so, and particularly the failure to produce Keeler, constituted reversible error. Each objection interposed was promptly sustained. Appellee claims the remarks were proper replies to the argument of appellant’s counsel. While that argument is not shown by the abstract, the language of the closing argument discloses that in a large measure the matter objected to was in reply to statements of appellant’s counsel.

It is impracticable to detail the remarks complained of. The substance of them is that appellee proved his case and that appellant brought no witness but attempted to argue facts not in evidence, claiming there was no eye witness except appellee’s son; that Keeler was an eye witness and appellant did not produce him; that appellant’s counsel asked why appellee did not bring in another witness to the tire marks in the dust, to which he replied: “Why didn’t they bring in a witness there wasn’t any tracks?”; that appellant’s counsel said the accident was caused by centrifugal force, but it was the driver’s duty to avoid such a force, and that Keeler was the name for centrifugal force. Asking if the argument of appellant’s counsel was reasonable, he said that if they wanted to show facts they could do so, and “When they sit in court and don’t bring witnesses it leaves it up to you to conclude they must be satisfied with the facts we brought in here and brought in all the proofs. They say they want the truth. Why don’t they bring in witnesses to prove the facts?” He also said: “I will say this, they keep talking about there isn’t any witness, there is a witness here, there is a real witness to this collision who absolutely saw the accident and was there and is guilty of negligence charged in this suit and that is Robert B. Keeler and he is the grandson of this man.” The argument as a whole clearly shows the word “here” related to the lawsuit or occurrence and not the court room. He later said: “I say they have testimony that is available here, that is contrary to what we say and don’t bring him in here and absence may be proof of the fact-.” He was here interrupted before he finished the sentence by an objection which was sustained. What fact he would have mentioned if he had not been interrupted, is not a matter for our conjecture.

The books are replete with decisions, in cases where both parties produced testimony, that the failure of one party to bring in an accessible witness, gives rise to the presumption that the testimony of the absent witness would be. unfavor able to the party failing to produce him. Cases where a defendant failed to produce any evidence, but rested his defense upon the weakness of the testimony of the plaintiff’s witnesses, are not so numerous. We first note that there is no showing that the testimony of Keeler, one of the defendants, was not readily accessible to appellee.

Analysis of the decisions in various jurisdictions discloses that there is but little, if any, difference in the basic principles announced. What might appear to be a lack of harmony on cursory examination is due in some degree to whether the plaintiff made a prima facie case. Wigmore’s Evidence (3rd Ed. 1940), sec. 285, says: “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.” In section 290(5) it is stated: the opponent whose case is a denial of the other party’s affirmation has no burden of persuading the jury. A party may legally sit inactive, and expect the proponent to prove his own case. Therefore, until the burden of producing evidence has shifted, the opponent has no call to bring forward any evidence at all, and may go to the jury trusting solely to the weakness of the first party’s evidence. Hence, though he take a risk in so doing, yet his failure to produce evidence cannot at this stage afford any inference as to his lack of it; otherwise the first party would virtually be evading his legitimate burden. This distinction has been recognized and is reasonable; but it has been little developed in its application.”

20 Am. Jur. Evidence, sec. 133, page 136 lays down the following principles: “Where a prima facie case is made for the party who, in the first instance, has the burden of proof by reason either of a presumption which arises in his favor or of proof which he introduces in support of his claim, the burden of going forward with the evidence and producing further evidence to explain away the case thus made shifts to his adversary, but the burden of proof in the true sense of the word does not, by reason of such prima facie case or presumption, shift to him.”

There is no presumption against a defendant for failure to call witnesses, when the plaintiff, carrying the burden of proof, has not made a prima facie case, and such presumption cannot be used to relieve the plaintiff from the burden of proving his case. (Condon v. Schoenfeld, 214 Ill. 226; Hutcheson v. Savings Bank of Richmond, 129 Va. 281, 105 S. E. 677; Stimpson v. Hunter, 234 Mass. 61, 125 N. E. 155, 7 A. L. R. 1067; Loper v. Askin, 178 App. Div. 163, 164 N. Y. S. 1036.) On the other hand, where the plaintiff makes a prima facie case, the failure of the defendant to produce any evidence warrants the inference that the testimony would he unfavorable to him, (Logan v. Walker, 152 La. 880, 94 So. 430), and may be considered by the jury. (One Buick Automobile v. United States, 275 Fed. 809.)

The leading case where it is held that comment upon the failure of a defendant to produce any evidence is reversible error is McDuffee’s Admr’x v. Boston & M. R. R., 81 Vt. 52, 69 Atl. 124. The holding is cited in 2 R. C. L. 413; 64 C. J. 270; 22 Id. 112; and is strongly relied upon by appellant. In that case the plaintiff’s intestate, an employee of the defendant, died from being struck by a water tank spout while standing on top of a moving train with his face in the opposite direction. The railroad company introduced no testimony, and the plaintiff introduced none to show the decedent did not know of the spout or its danger. The court permitted the plaintiff’s counsel to refer to what the defendant might and could have proved in that respect by evidence peculiarly within its knowledge. The court held the remarks were prejudicial and reversed a judgment for the plaintiff." But it is to be observed that the court held: “The burden was upon the plaintiff to show that her intestate did not know of the existence of the danger. . . . For aught we know the jury may have found upon this argument alone that the intestate did not know of this danger.” It thus appears the plaintiff in that case did not produce evidence sufficient to make out a case.

In Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, S. A., 32 F. (2d) 209, the defendant’s ship was moored at the plaintiff’s slip. The captain of a towing company’s tug was on the bridge of the ship with the ship’s captain, mate and a pilot. He testified he signaled the ship’s engineer to back the ship, and the signal was answered. The ship went forward, broke a line and injured the dock. The trial court refused to permit the plaintiff’s counsel to comment on the defendant’s failure to produce the engineer, captain and mate of the ship. The reviewing court approved the ruling, citing the McDuffee case as authority. In the course of the opinion the court pointed out that ‘ ‘ The plaintiff had the burden to prove actionable negligence on the part of the defendant, and was not entitled to a verdict simply by showing that the ship went ahead after Healey (captain of the tug) gave an order to put it astern.” This case is in the same class as the McDuffee case.

In Sandberg v. Chicago Rys. Co., 191 Ill. App. 199, plaintiff’s counsel in the argument commented upon the fact that the defendant had not produced as witnesses persons whom its counsel said in his opening statement were on the car and knew how the accident happened. In reversing a judgment for the plaintiff the court specifically said that the evidence of defendant’s negligence and of due care on the part of plaintiff’s intestate was so meager as to leave much that was essential for inference.

Cooper v. Metropolitan Life Ins. Co. (Mo. App.), 94 S. W. (2d) 1070, holds the failure of a party to produce evidence peculiarly within his knowledge or control and which he would naturally be expected to produce if favorable to him, gives rise to a presumption it would be unfavorable to him, but that the presumption does not apply when the evidence is equally available to either party.

In Hinchman v. Pere Marquette Ry. Co., 136 Mich. 341, 65 L. R. A. 553, the court reversed a judgment for plaintiff because of erroneous instructions and in his argument counsel told the jury that a fireman not produced was still in the defendant’s employ, when there was no such evidence.

The foregoing cases are relied upon by appellant, but it is obvious that none of them is persuasive here.

In the following cases, where the plaintiff made out his case and the defendant introduced no evidence, it was held a presumption or inference arose that the testimony would have been unfavorable to the defendant. (Stocker v. Boston & M. R. R., 84 N. H. 377, 151 Atl. 457, 70 A. L. R. 1320; Rioux v. Cronin, 222 Mass. 131, 109 N. E. 898; Powell v. Strickland, 163 N. C. 393, 79 S. E. 872; Barker v. Nunn, 275 Mo. 565, 205 S. W. 14; Moore v. Smith, (Mo. App.) 255 S. W. 1071; Henderson v. Ball, 193 Iowa 812, 186 N. W. 668; Bone v. Hayes, 154 Cal. 759, 99 Pac. 172; Howe v. Howe, 199 Mass. 598, 85 N. E. 945; Attorney General v. Pelletier, 240 Mass. 264, 134 N. E. 407; Succession of Levitan, 143 La. 1025, 79 So. 829, 2 A. L. R. 1646.

It is manifest that if the failure to produce testimony creates an unfavorable presumption against the party failing to produce it, comment on such failure is proper. The following cases uphold the right to comment upon such failure: Smith v. Kansas City Rys. Co., 208 Mo. App. 139, 232 S. W. 261; Powell v. Strickland, supra; Cheraw Motor Sales Co. v. Rainwater, 125 S. C. 509, 119 S. E. 237; Brito v. Newmarket Mfg. Co., 79 N. H. 163, 106 Atl. 224; Cincinnati N. O. & T. P. Ry. Co. v. Tucker, 168 Ky. 144, 181 S. W. 940; American Steel Foundries v. Kistner, 136 Ill. App. 48. The judgment of the Appellate Court in the latter case was reversed on the ground of assumed risk, but no comment was made on the holding as to argument of counsel. The evidence on behalf of appellee in the case at bar clearly and fully established his case. Under the rules of law and the authorities above cited, his counsel had the right to comment upon the failure of appellant to produce any evidence.

It is also claimed the verdict is excessive and was induced by inflammatory and prejudicial remarks of appellee’s counsel. We know of no rule of law which required counsel to refrain from saying appellant’s counsel sought to make liars of appellee’s witnesses, or from saying that Keeler was the name for centrifugal force, when opposing counsel had disparaged the testimony of the witnesses and had attributed the accident to centrifugal force. Appellee’s wife suffered a skull fracture and a compound fracture of one leg. The remark that the accident made her a wreck and that she is insane were within the testimony and competent as bearing upon the question of the loss of her services. Appellee’s counsel went outside the allegation of damages for loss of services of the wife when he referred to the loss of her companionship, and said a man had a right to bring suit for loss of association of his wife, and that it was a damage the law recognized and for which money could not compensate him. An objection to the statement was promptly sustained and it was not repeated. Appellant did not ask the court to instruct the jury to disregard the remarks, but was content with the ruling. Ordinarily he should not now be permitted to urge the objection. (Quincy Gas & Electric Co. v. Baumann, 203 Ill. 295 (298); City of Chicago v. Leseth, 142 Id. 642.) However, a verdict will be set aside, although objections have been sustained to improper remarks, if they were of such a character as to prejudice the party against whom they are made. (Chicago North Shore & Milwaukee R. Co. v. Chicago Title & Trust Co., 328 Ill. 610; Appel v. Chicago City Ry. Co., 259 Id. 561.) But a judgment will not be reversed for improper conduct of counsel unless the conduct is prejudicial. (People v. Hartford Life Ins. Co., 252 Ill. 398; Heineke v. Chicago Rys. Co., 279 Id. 210.) No reason, except the alleged prejudicial remarks, is urged as to why appellant’s admittedly permanent injuries and the loss of his wife’s services do not justify the amount of the verdict. In view of their character and extent and their permanent nature we do not think the verdict can be said to be excessive on that account. If the case were close on the facts, or there were any other error in the proceedings which was prejudicial, or if we could say the amount of the verdict could have been the result of the remarks, we would not hesitate to reverse the judgment. "The statements as to the loss of companionship were improper, but the jury would so understand from the ruling of the court. There was evidence that appellee had paid approximately $800 up to the time of the trial for help occasioned by the loss of his wife’s services, and that prior to the accident she did all the household work. We are unable to say the remarks inflamed or influenced the jury in the amount of their verdict, or that another trial, with the improper remarks eliminated, would probably result in a verdict for a lesser amount. It is not required that a record be free from error, and a judgment will not be reversed for errors unless it can be seen they were prejudicial. Where, as here, substantial justice appears to have been done, the verdict will not be set aside. (Herdien v. Jones, 202 Ill. App. 172; Kauffman v. Sanner, 184 Id. 163.)

Two instructions are complained of because they do not in words charge the acts of Keeler were the “proximate cause” of the injuries. After stating that the law in this State requires a driver to keep to the right side of the black line of a pavement, the instructions told the jury that if they believed from the evidence that Keeler carelessly and negligently drove across the black line to the left into appellee’s car “so that” appellee was injured as complained of, and that appellee was in the exercise of ordinary care for his own safety and that of his car, they should find for the plaintiff. The words “so that” were used as the equivalent of proximate cause and any layman would so understand them. An analogous instruction was approved in Chicago & Eastern Illinois Railroad Co. v. Crose, 214 Ill. 602, where the same objection was raised.

Finding no reversible error in this record the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Huffman

text:
    In re Estate of Adaline B. Drain, Deceased. Board of Home Missions and Church Extension of the Methodist Episcopal Church et al., Appellees, v. Harry B. Helm, Executor of Last Will and Testament of Adaline B. Drain, Deceased, Appellant.
    Gen. No. 9,675.
    Heard in this court at the May term, 1941.
    Opinion filed August 14, 1941.
    Rehearing denied October 7, 1941.
    Kenneth W. Miller, of Prophetstown, and S. M. Ellison, of Alpha, for appellant.

      Robert W. Besse and Kennard J. Besse, both of Sterling, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This action originated by way of claim filed by appellees against the estate of Adaline B. Drain, in the county court of Whiteside county. The Board of Home Missions and Church Extension, and the Board of Foreign Missions, of the Methodist Episcopal Church, were engaged in a campaign to raise funds to carry on the work of such boards. Pursuant thereto, they obtained a pledge from Adaline B. Drain and C. Roberta Brown in the sum of $2,000, which pledge read as follows:

“Centenary Estate Pledges
For the Board of Home Missions and Church Extension and for the Board of Foreign Missions of the Methodist Episcopal Church.
May 6, 1919

In consideration of our interest in Christian Missions, and on condition that the above-named Boards secure other subscriptions for this cause, and for value received, I (italics scored out) we hereby promise and agree to pay to the Board of Home Missions and Church Extension and the Board of Foreign Missions of the Methodist Episcopal Church, at No. 150 Fifth Avenue, New York City, the sum of Two Thousand and no/100. . . . Dollars ($2,000.00) which shall become due one day after our death, payable out of our estate.”

Roberta Brown predeceased Adaline B. Drain. After the death of Adaline B. Drain, claim was filed upon the pledge. The county court denied the claim, and upon appeal to the circuit court of said county, the claim was allowed. The executor under the will of Adaline B. Drain brings this appeal from the judgment of the circuit court allowing such claim.

Appellant urges for reversal that appellees failed to make out a prima facie case, and therefore were not entitled to judgment, and that the court erred in not granting motion of appellant to render judgment denying the claim.

The evidence shows that, at the time the pledge in question was secured, 238 similar pledges had been received, which amounted to approximately $268,000, and that some $70,000,000, in similar pledges were subsequently received. The only witness in the case was the custodian of the pledges..

Appellant argues that payment cannot depend upon a contingency which may never happen, and that compliance with the conditions mentioned in the instrument must be proved. It is further urged by appellant that subscription of others, or labor and expense in obtaining other subscriptions, do not constitute a consideration to support a subscription, citing in this respect, the case of Cutwright v. Preachers’ Aid Society, 271 Ill. App. 168.

It is urged by appellees that the words “for value received,” import a consideration, citing in this respect, Estate of Beatty v. Western College of Toledo, Iowa, 177 Ill. 280, 291; In re Estate of Baker, 279 N. Y. 449, 18 N. E. (2d) 656. In the case last cited, it is said that, “the inference of consideration from the phrase ‘for value received,’ on the face of each of the notes was not necessarily repelled by the remainder of the text of the instruments themselves.” The instrument in that case was designated as an, “endowment note,” and for value received, subscribed $3,000, to the endowment fund of an academy, payable 12 months after the death of the signers.

It is generally considered that a promise to donate money to a charitable purpose is gratuitous and unenforcible unless consideration therefor exists; however, the original gratuitous promise will be converted into a valid and enforcible contract, where before a withdrawal of the promise, and in reliance thereon, as well as on the promises of others, the charitable organization to which the promise was made, expends money and incurs enforcible liabilities in furtherance of the enterprise the donors intended to promote.

Any attempt to reconcile the cases from various jurisdictions on the validity of voluntary engagements to pay money for charitable purposes would be of no avail. Different theories have been advanced for sustaining such contracts. The facts and circumstances in the various instances differ widely, as well as rules and interpretations applied as tests of the validity to such undertakings.

A few courts have indicated that a subscription agreement is enforcible without the necessity of legal consideration sufficient to support an ordinary contract. However, we do not find this jurisdiction to be in that group. It would appear that under the rule in this State, a gratuitous subscription for a charitable purpose is considered as a continuing offer to make a gift, and until accepted or acted upon by the recipient in such a manner as to raise a consideration, it is unenforcible and may be withdrawn, since until such time, it is deemed to be without consideration. Thus, we find that if the promisee on the faith of the subscription, and before its withdrawal, performs some act such as the expenditure of money or incurring liabilities which are enforcible, in furtherance of the enterprise the promisor intended to assist or promote, consideration for the subscription is then supplied, and the same is thereafter deemed to be valid, binding and enforcible.

Courts lean toward sustaining such contracts when the same may be done without violating established rules of law. Many of our most beneficient institutions are largely maintained by virtue of voluntary contributions from those who are disposed to encourage and promote such work. Trustees of the Methodist Episcopal Church of Illiopolis, v. Garvey, 53 Ill. 401.

It appears from the record that appellee corporations had completed 100 years of mission work in the furtherance of Christian Missions, and that in observance of the completion of this period of service, the campaign had been inaugurated to raise additional funds for the maintenance and furtherance of such work, and that from the subscriptions so secured, of which that in question was one, the proceeds of such pledges as were collected, had been expended in furtherance of the enterprise the promisor intended to promote. Thus, it appears that great expense had been incurred in the furtherance of the proposed work following the pledge involved herein. Such expenditures could not take place without incurring legal liabilities. The mutuality of the promise is to be tested by the situation existing at the time the subscription is sought to be enforced, and not that existing at the time of the signing thereof.

With respect to appellant’s point that no consideration appeared in connection with the pledge, we find that it recites a consideration. This has been deemed sufficient to establish a prima facie case. Estate of Beatty v. Western College of Toledo, Iowa, supra; In re Estate of Baker, supra. Furthermore, it would appear that appellees have expended a large amount of money in and about the work which was the object of the subscription, and we are inclined to the opinion that such is sufficient to estop appellant from raising the defense sought to be interposed.

The judgement is therefore affirmed.

Judgment affirmed.


text:
    Tressea Reed, Administratrix of Estate of Raymond Detloff, Deceased, Appellant, v. Roland Lyford, Appellee.
    Gen. No. 9,688.
    Heard in this court at the May term, 1941.
    Opinion filed August 14, 1941.
    Rehearing denied October 7, 1941 and modified opinion filed October 21, 1941.
    B. Jay Knight and Frederick H. Haye, both of Rockford, and Oscar W. Ingram, of Beloit, for appellant.
    Ryan & Hood, of Rockford, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant’s intestate lost his life when appellee’s automobile collided with the side of a coal tender attached to a railroad engine. Appellee was driving the car. The deceased was riding in the front seat with him. Lester Morris was riding alone in the back seat. The accident happened shortly after eleven o’clock on the night of October 21, 1939. . The concrete highway was dry, straight and free from obstruction. The jury returned a verdict for the appellant in the sum of $1,800. Appellee filed a motion for a new trial, and a motion for judgment notwithstanding the verdict. After the filing of these two motions, appellee withdrew his motion for a new trial, and left standing before the court for its consideration only the motion for judgment notwithstanding the verdict. The court granted this motion, and entered judgment for appellee notwithstanding the verdict. Appellant brings this appeal therefrom.

It is the position of appellee that a passenger in an automobile which is approaching a railroad crossing, if he has an opportunity to learn of danger, is charged with the duty of warning the driver. Niederle v. Chicago Rapid Transit Co., 264 Ill. App. 347; Morgan v. Rockford B. & J. Ry. Co., 251 Ill. App. 127; and further, that the deceased and appellee were guilty of willful and wanton misconduct to the same degree, and therefore, appellant could have no recovery, citing in this respect, the case of Willgeroth v. Maddox, 281 Ill. App. 480.

Appellee was called as an adverse witness, under section 60 of the Practice Act. He testified that he was 34 years of age; that he had been accustomed to driving over this highway for 12 years; that he knew these tracks were there; that the headlights of his car were turned on and in good shape; that the brakes were in good working order; that the deceased was in the front seat with him, and Morris was in the back seat; that he was driving the car; that he could see the tracks for a quarter of a mile before he reached them; that upon approaching the tracks he looked in both directions for trains; that he did not see anything; that he did not see the engine and tender that was on-this switch track and across the highway; that he was traveling about 30 or 35 miles per hour, and since he did not see anything to obstruct his travel, he kept right on going. He further testified that the handle or lever which controlled the emergency brake was located between him and the deceased; that he did not apply the emergency brake; that he was looking straight ahead, but never saw the train; that he was told his car struck the back end of the engine; that he did not see the deceased after the collision, and that he did not see the engine and coal tender until after the collision; that he did nothing to avoid the collison because he did not' know the train was there; that the deceased was sitting where he could apply the emergency brake; that he was looking for a train as he approached the main track but saw none; that the switch track is about 100 feet beyond the main track; that the switch engine and coal tender were on the switch track, and he was not expecting a train there; that he saw no other automobiles on the highway; that his lights were burning at all times, and that there was nothing to obstruct his vision.

Lester Morris testified that the pavement was dry; that he knew the main track and switch track were located at the places in question; that he did not apply the emergency brake; that the lights on appellee’s car were burning; that the road was straight as it approached the crossing in question; and that no automobiles were approaching or following appellee’s car. He estimates the speed to have been about 35 or 40 miles per hour. He does not know whether the emergency brake was applied before the collision. The only thing he remembers about the accident is that he opened his eyes and saw the train. He states that appellee’s car turned neither to the right nor left before the collision.

The headlight on the engine was burning. Skid marks were on the pavement from the place of impact between the car and engine, running back a distance of about 25 feet. Following the accident, a chain was hooked to the automobile and attached to the engine and the car pulled from off the pavement to the side of the highway where it turned over. The garage mechanic who arrived at the scene of the accident about one and a half hours afterwards, found the car overturned at the side of the road where the engine had pulled it. He further found the emergency brake set so tightly that he could not release it in the ordinary manner.

Appellee and Morris were together at a tavern on the evening in question. They had been there about an hour when the deceased came in, about 10:30. The three of them left the tavern in appellee’s car at about 11:00 p.m.

The foregoing is a brief summary of the evidence on the part of plaintiff below. We find from appellee’s testimony that the pavement was straight and level, and the view unobstructed. He says he looked for a train on the main track, and saw nothing. He proceeded forward to a point about 100 feet beyond the main track where he collided with the switch engine which was upon the switch track. The law charges a person with the duty of seeing that which is clearly visible and within range of vision. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, 632; Dee v. City of Peru, 343 Ill. 36.

“A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone and when considered to be true, together with all the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff.” Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 199; Fewkes v. Borah, 376 Ill. 596, 35 N. E. (2d) 69. The same rule applies with respect to motions for judgments non obstante veredicto. LeMenager v. Northwestern Steel & Wire Co., 301 Ill. App. 260. Upon such a motion, the question is, whether there is any evidence in the case which, if true, tends to prove the plaintiff’s cause of action. The court can not weigh the evidence of one party as against the other. Under the state of the record, we are of the opinion the trial court erred in granting appellee’s motion for judgment non obstante veredicto. The facts and circumstances in this case differ substantially from those in the Willgeroth case, supra. Since no motion for a new trial is pending in the case, the judgment is reversed, and the cause remanded with directions to the trial court to entertain a motion for a new trial, if such be made, and for further proceedings consonant with the law.

Opinion modified as above.


text:
    George F. Brown and Luzelle Clark Brown, Appellees, v. Sears, Roebuck and Company and F. B. McConnell, Trustee, Appellants.
    Gen. No. 9,657.

      Heard in this court at the May term, 1941.
    Opinion filed August 27, 1941.
    Rehearing denied October 7, 1941.
    Lederer, Livingston, Kahn & Adsit, of Chicago, and James Herrington Scott, of Geneva, for appellants; Sigmund Livingston, of Chicago, James Herrington Scott, of Geneva, and Robert J. Weiss, of Chicago, of counsel.
    Earl R. Shopen, of Elgin, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

Appellees, George F. Brown and Luzelle Clark Brown, husband and wife, by their amended complaint sought to have their note dated March 6, 1935 for $500 and a junior trust deed executed by them to secure the payment of the same declared null and void and to enjoin the defendants from bringing suit on said note or from foreclosing said trust deed. The defendants, Sears, Roebuck and Company, the owners and holders of said note and trust deed, and the trustee, F. B. McConnell, answered, and after the issues had been made up, a hearing was had before the chancellor, resulting in a decree granting the plaintiffs the relief sought. To reverse that decree, the defendants have appealed.

The record discloses that in 1934 appellees were indebted to appellant, Sears, Roebuck and Company in a sum exceeding $5,000. This indebtedness was evidenced by notes dated June 5, 1926 and October 21, 1932, which were secured by two trust deeds upon premises in Elgin, occupied by appellees as a homestead. On July 30, 1934 appellees filed their written application with the Home Owners’ Loan Corporation, (hereinafter referred to as HOLC) applying for a loan of $5,850. This application, among other things, recited that Sears, Roebuck and Company, of Chicago, Illinois held mortgages upon their homestead, upon which there was due at that time a balance of $4,925.30 on the principal and unpaid interest amounting to $103.94, and that the total amount of incumbrances, taxes and paving assessments against their property aggregated $5,776.16. In October or November following, a representative of Sears, Roebuck and Company informed appellees that the net amount available to this company from the proposed HOLC loan would be around $3,990, which they were not willing to accept, but would do so if appellees would give the company a note for $500 secured by a second mortgage. Appellees agreed to do this, and on January 15, 1935 executed their note to HOLC for $4,540 and secured its payment by a first mortgage on their homestead. Prior to this and on January 11, 1935, Sears, Roebuck and Company executed the following instrument, vis:—

“To HOME OWNERS’ LOAN CORPORATION:
The undersigned is a holder of a first mortgage or other obligation, which constitutes a lien or claim on the title to the home property of—
George F. Brown, located at 400 Adams Street, Elgin, Illinois in the sum of $5010.59 including unpaid balance of principal and interest, to date.
Being informed that said owner has made application to Home Owners’ Loan Corporation to refund his said indebtedness, the undersigned has considered the method of refunding mortgages provided in Home Owners’ Loan Act of 1933, as amended and passed by Congress and approved by the President, and the undersigned hereby consents, if said refunding can be consummated, to accept in full settlement of the claim of the undersigned the sum of $3854.00, face value of the bonds of Home Owners’ Loan Corporation, to be adjusted with not exceeding $25 cash and thereupon to release all the claim of the undersigned against said property.
It is understood that the Home Owners’ Loan Corporation will incur trouble and expense in connection with its effort to refund the indebtedness of said home owner, and this consent is executed in consideration of the same and shall be binding for a period of 60 days from date, and thereafter until 10 days written notice shall have been given the State manager of the Corporation.
This, the 11th day of January, 1935.
The following information should be furnished by the mortgagee:
Date of mortgage..........date due..... balance due...........................$4925.30
Interest at 6%. Due from 9/15/34 to 1/15/35 ..............................$ 85.29
Total amount due to mortgagee $5010.59 as of 1/15/35.”

Accompanying this consent, according to the testimony of L. C. Jann, who had supervision of the refinancing of this loan and who was connected with the mortgage loan department of Sea:rs, Roebuck and Company at that time, was a letter of the same date addressed to the Home Owners’ Loan Corporation, Be: Appl. 63975, Geo. F. Brown, Elgin, Illinois. This letter is as follows:

‘‘Gentlemen:
Enclosed herewith our Consent to accept the sum of $3854.00 in HOLC bonds in full satisfaction of our mortgage in connection with the above application, submitted with the understanding that we be permitted to take a note and second mortgage for $500.00, payments on which are to conform to HOLC regulations of interest only for three years and amortized payments of $10.00 monthly thereafter.
Yours truly,
Sears, Boebuck and Co,,
Mortgage Loan Department
By: L. C. Jann.”

In March 1935, the authorization for the delivery of HOLC bonds to Sears, Boebuck and Company was received by it, and on April 5, 1935 cash and bonds aggregating $3,854 were received from HOLC and accepted by this appellant. The mortgages which they held were thereupon released of record and the evidences of indebtedness canceled and surrendered to appellees and as a part of this transaction, appellees executed their note dated March 6, 1935 for $500. Interest only payable on the 15th day of March in each year after the date thereof at the rate of 5 per cent per annum, until and including March 15, 1938, then instalments of $10 including interest at 5 per cent, payable on the 15th day of each and every month in each year, beginning April 15,1938 and continuing until the sum of $190.70 shall have been paid on the principal and the balance of $309.30 in five years after the date thereof, all principal and interest remaining unpaid to become due and payable on March 15, 1940. To secure the payment of this note, appellees executed their junior trust deed which recited that it was subject to the HOLC incumbrance. This note and trust deed were delivered to Sears, Roebuck and Company and duly recorded and are the instruments appellees seek to have canceled by this proceeding. The evidence further discloses that appellees paid the interest on said note amounting to $25 each year for three years which includes the interest to March 15, 1938 and thereafter on March 29, 1939, this proceeding was instituted.

Counsel for appellees state that upon this record it is for this court to decide whether notice was required to be given by Sears, Roebuck and Company to HOLC of its intention to obtain a second mortgage from appellees, and if so, then the essential question of fact, is whether or not HOLC received the letter of January 11, 1935 hereinbefore referred to, which Mr. Jann testified accompanied the consent of Sears, Roebuck'and Company to accept $3,854 in settlement of its notes and trust deeds upon which there was then due $5,010.59.

This letter advised the corporation that Sears, Roebuck and Company would accept the sum of $3,854 with the understanding that it be permitted to take the note and junior trust deed involved in this proceeding. Mr. Jann testified that on January 11, 1935 he executed both the consent and the letter and attached one to the other, 'using a Hotchkiss paper fastener. That the original letter (an office carbon copy of which he produced upon the hearing) and the consent, after having been signed and fastened together, was placed in an envelope and the envelope placed in the outgoing mail basket; that there was a U. S. Postal substation in the Sears Plant; that on January 11, 1935 there was a definite and established custom as to mailing of letters which was in practice at that time and has always been followed; that in the instant case the usual practice was followed and this envelope containing the consent and letter were placed in an outgoing mail basket after which it was the duty of designated file clerks to pick them up and see to it that they left the office properly mailed.

The evidence is further that Mr. Jann never saw the original letter after it was so mailed. The consent to which it was attached was produced upon the hearing by the custodian of the closed loan file of HOLC, but the letter which Mr. Jann said was fastened thereto was not produced and the testimony is that it was not found in this file and that this file contained all the official documents in connection with this loan, and that there was no other file in connection therewith except a correspondence folder. The attorney who closed this loan for HOLC testified that he had examined the closed loan file and that to the best of his knowledge it was in the same condition when it was produced upon the hearing as it was when he closed the loan, and that he did not close any loans that involved the giving of a second mortgage. That when he received this file the consent executed by Mr. Jann was, as he recalled it, in the file at that time, but he did not remember receiving any letter in connection with the consent. He further testified that when the loan was closed up and he was through with the file he sent it back to the HOLC clean up department and that he thought there was some correspondence in connection with this loan which he did not find. Mr. Ballard, who had custody of the closed loan file testified that there was a correspondence file which contained correspondence since the loan was closed, but that he had no knowledge of what happened to correspondence which took place before the loan was closed.

H. D. Walther testified that he was the assistant regional manager of the HOLC until January 1, 1936 and was the highest ranking official having supervision of loans made in the district embracing Kane county; that pursuant to HOLC rules and regulations, employees were asked to note on the consent blank that a second mortgage was being taken and were directed to inquire into the terms of the second mortgage and that the consent executed by Sears, Roebuck and Company bore no notation concerning a proposed second mortgage. This witness further testified that he knew of no regulation of HOLC requiring notice to be given by the proposed taker of a second mortgage in connection with refinancing, and that the rules and regulations in effect when this second mortgage was executed provided: “Where the full amount of the indebtedness against the property cannot be refunded by the Corporation, the mortgagee or other lien holder will be permitted to take a second mortgage or deed of trust— second deed of trust, if the amount of such second mortgage or deed of trust does not exceed the difference between the Corporation’s appraisal and the amount of the Corporation’s first mortgage. In no case shall the second trust or mortgage to such other mortgagee or lien holder be in terms which would cause the mortgagor’s payments to the Corporation to be a hardship, or deprive the mortgagor of reasonable opportunity to pay such second mortgage or second trust.”

The evidence is further that the manager of HOLC appraised appellees’ premises at $6,000. The difference between this amount and $4,540, the amount of the first mortgage is $1,460. Appellees’ second lien is for $500 and it is conceded that the rate of interest, —5 per cent — the payments, and all other provisions of the note and junior trust deed executed by appellees and accepted by Sears, Roebuck and Company, are in accordance with the rules and regulations of HOLC.

In Bealkowski v. Powers, 310 Ill. App. 662, 35 N. E. (2d) 386, it appeared that the defendants were indebted to the plaintiff, Bealkowski, in the sum of $2,332 evidenced by a note secured by a first mortgage upon the home of the defendants. With the knowledge of the plaintiff the defendants applied to HOLC for a loan to take np plaintiff’s indebtedness. Plaintiff agreed with HOLC to accept $1,585 from it in full settlement of his claim against the defendants. The instrument which Bealkowski signed recited that if the indebtedness to him was refunded by TIOLC that he would accept in full settlement thereof the sum of $1,585 in bonds at par and thereupon discharge all claims against the property, and that he required no additional consideration of the defendants. Prior to signing this agreement, Bealkowski exacted from Mr. and Mrs. Powers a judgment note for $250 which formed the basis of his suit. In reversing a judgment for the plaintiff, the court cited many of the authorities relied upon by counsel in the instant case and held that plaintiffs’ attempt to enforce his note against the defendants was a breach of his agreement with HOLC and obviously an attempt to require payment of money as additional consideration and that a part payment in full settlement of a liquated indebtedness by or with the aid of a third person discharges in full the entire original debt. The opinion quotes from Restatement of Contracts, sec. 421 and from 1 Corpus Juris 545, sec. 51 to the effect that a payment or other performance by a third person, accepted by a creditor as full or partial satisfaction of his claim, discharges the debtor’s duty in accordance with the terms on which the third person offered it and payment by a third person of a sum less than the amount due, with the understanding that it should be in full satisfaction thereof, is a valid accord and satisfaction, and no action will lie against the debtor to recover the balance. After reviewing a number of cases the court said: “It would appear from the cases involving the Home Owners’ Loan Corporation that the mortgagee’s consent to take bonds operates as a release in .full of the debtor’s liability, and that, therefore, any additional consideration taken by the creditor representing an alleged loss in the refinancing is void. ... It would appear, as we have already indicated, that the Home Owners’ Loan Act of 1933 was an emergency measure enacted for the relief of home owners who were unable to carry or refund their mortgage indebtedness. It provided for the exchange of HOLC bonds and cash for the mortgage and bond, or other obligation held by the mortgagee, and for the execution of a new mortgage by the home owner to the Home Owners’ Loan Corporation. It is apparent that the purpose and intent of the act was to free the owners’ home property from an oppressive mortgage or other liens, and to reduce and settle his obligations so as to give him a chance to become rehabilitated. . . . In view of plaintiff’s signed representation to the HOLC that he would no longer require of defendants any more money or other consideration, it can hardly be urged, and indeed has not been urged in the instant case, that the HOLC was aware of the existence of the cognovit note upon which was predicated the judgment at issue.”

In the instant case, the uncontradicted evidence is that the consent agreement executed by Sears, Roebuck and Company was accompanied by its statement to the effect that it would only accept $3,854 from HOLC in full satisfaction of its mortgage with the understanding that it be permitted to take a note and second mortgage for $500 and this note and junior mortgage would conform to HOLC requirements. Counsel for appellee insist there was no direct evidence that HOLC received this notice of Sears, Roebuck and Company to take a second mortgage and cites cases to the effect that an unanswered letter is self-serving and, therefore, inadmissible in evidence. The consent executed by Sears, Roebuck and Company differs from the one executed by the plaintiff in the Bealkowshi case in that it did not recite that Sears, Roebuck and Company would not require any additional security. Not only that, but the letter informed HOLC that it would require a second mortgage. The officials of HOLC produced upon the trial of this cause the consent, and it disclosed holes and perforations made by a Hotchkiss paper fastener. The envelope containing this consent was duly received by HOLC and while the evidence is circumstantial in a measure, the only reasonable conclusion from all the evidence and the facts and circumstances in evidence, is that this letter was received by HOLC at the time it received the consent to accept bonds. The only evidence that HOLC did not receive this letter is the fact that it was not found in the closing file of this loan more than four years after the file had been completed. This fact, in our opinion, does not overcome the positive testimony of Mr. Jann to the effect that he signed this letter and consent, fastened them together and placed them in an envelope and placed the envelope in an outgoing mail basket, where, in the usual course of business, it would be picked up and properly mailed. The consent was duly received by the party to whom it was addressed and the presumption is that the letter reached its destination inasmuch as the envelope in which it was inclosed and the consent to which it was attached reached their destination. Furthermore, early in 1936 HOLC knew that Sears, Boebuck and Company had taken second mortgages in a number of instances where its loans had been refinanced by HOLC and a list of the names of such mortgagors in Illinois and Wisconsin, was furnished special agents of HOLC and on July 30, 1936 the head attorney of HOLC, having received the list from the special agent, advised Sears, Boebuck and Company by letter that the note and junior mortgage of appellees which Sears, Boebuck and Company held, conformed to HOLC regulations and that there was no need for any adjustment in connection therewith. On May 27, 1934 HOLC, by its general manager, Wm. H. McNeal in Washington, D. C. advised Sears, Boebuck and Company that it was “the policy of the Board of this corporation to permit mortgagees to take second mortgages subject to our first lien equal to an amount of 20% of our corporation appraisal value provided that such second mortgage is taken on such terms as will permit the borrower to carry second mortgage payments as well as first mortgage payments without causing him to again lapse into distressed financial conditions.” The evidence in the case is that appellee, George F. Brown, at the time he applied for the HOLC loan was employed by the Chicago, Milwaukee and St. Paul Railroad earning $140 per month and his wife was receiving a salary of $55 per month, that his wages have been increased and he was earning $175 per month at the time of the hearing.

The chancellor held that in this transaction Sears, Roebuck and Company practiced no fraud in obtaining from appellees the note and junior trust deed which forms the basis of this suit and the evidence abundantly sustains this finding. After the consent agreement which Sears, Roebuck and Company executed in this case was received by HOLC, that corporation adopted a new form to be used by holders of an indebtedness which HOLC was refinancing and this form contains the clause obligating such holder not “to require of the applicant (for an HOLC loan) any second mortgage or other instrument evidencing any portion of the aforesaid obligation or the payment of any money or any other additional consideration except only as follows. ...” This clause was not in the consent executed by Sears, Roebuck and Company. The law permitted appellees to place a junior mortgage on their home; it was the policy of HOLC to permit mortgagees to take second mortgages in a given amount subject to the first lien, and subject to certain conditions. The evidence discloses that neither any provision of the law creating HOLC nor any of the rules and regulations adopted in pursuance thereof were violated by Sears, Roebuck and Company in the instant case.

Upon this record, it is not necessary for us to determine whether Sears, Roebuck and Company was required to give notice to HOLC of its intention to obtain from appellees a note for $500 and a junior trust deed to secure the same. We hold it did give such notice, that no fraud was practiced upon appellees in obtaining said note and trust deed, and that subsequently, with knowledge of all the facts, HOLC approved said instruments and informed Sears, Roebuck and Company that they conformed with the regulations and requirements of HOLC.

The decree of the circuit court is reversed and this cause is remanded with directions to dismiss the complaint.

Reversed and remanded with directions.


author: Mr. Justice Friend

text:
    Agar Packing and Provision Corporation et al., Appellees, v. United Packinghouse Workers of America, Local 56 of the Packinghouse Workers Organization et al., Appellants.
    Gen. No. 42,034.

      Heard in the second division of this court for the first district.
    Opinion filed September 24, 1941.
    Arthur J. Goldberg, of Chicago, for certain appellants.
    Jacobson, Merrick, Nierman & Silbert, of Chicago, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.

September 3, 1941, plaintiffs filed a complaint against defendant unions and individual members and officers thereof, seeking preliminary and permanent injunctive relief, predicated upon allegations of an illegal strike and mass picketing. The case was assigned to Judge Bush of the circuit court. Pursuant to notice served upon defendants, a motion for a preliminary injunction was made on the morning of September 4th and continued, on defendants’ motion, to the opening of court in the forenoon of September 5th. On the afternoon of September 4th defendants served notice that on September 5th they would present a petition for a change of venue, alleging prejlichee on the part of the chancellor to whom the cause had been assigned, and stating that knowledge of this prejudice had come to their attention on that day. The petition for change of venue was properly signed and verified by more than three-fourths of the defendants. September 5th an order was entered continuing defendants’ motion for change of venue and plaintiffs’ motion for a preliminary injunction, until September 11th, subject to the right of plaintiffs to renew their motion on reasonable notice, and “without prejudice to the validity or propriety of the motion for change of venue as of this date.” In the afternoon of September 10th plaintiffs notified counsel for defendants that they would appear before the chancellor at 3:30 that day and renew their application for a temporary injunction. Defendants appeared by their counsel at the stipulated time and asked for a ruling on their petition for a change of venue. After some argument, the matter was continued until the following morning. On September 11th the hearing of the cause was further continued until the opening of court on September 12th. On that day the chancellor entered the order for a temporary injunction from which this appeal is prosecuted, and after entering the order, granted defendants ’ motion for a change of venue.

On September 12th, defendants made a motion in this court,to stay the interlocutory order. Plaintiffs thereupon interposed their printed answer to the motion and defendants replied to the answer. During the pendency of this motion the parties entered into a written stipulation “that this appeal shall be submitted on the briefs filed by the respective parties in connection with the motion to stay the interlocutory order appealed from, and that the sole question which shall be decided on the submission of this appeal shall be the change of venue question, including the application of section 11 of the Venue Act under the circumstances.”

Upon this state of the record the sole question presented for determination is whether the chancellor then had power to enter any order in the case, until he had passed upon the motion for the change of venue, which was presented in due time and in proper form. Plaintiffs rely on section 11 of the Venue Act (ch. 146, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.326]) for affirmance of the interlocutory order entered by the chancellor. This section of the statute reads as follows : “The order for a change of venue may be made subject to such equitable terms and conditions as safety to the rights of the parties may seem to require, and the judge in his discretion may prescribe.” (Italics ours.) The italicized portion of section 11 requires no construction. It clearly declares that “the order for change of venue may be made subject” to equitable considerations. There is nothing in the language of section 11 that either expressly or impliedly afforded the chancellor any power to deprive defendants of a substantial right by granting the injunction before he had passed upon their motion for a change of venue. It is argued that under the allegations of the complaint a showing of irreparable loss and damage to plaintiffs impelled the chancellor to order the temporary injunction before granting the change of venue. However, the decisions in this State are clearly and uniformly to the effect that where an application for change of venue is made on account of the prejudice of the trial judge, the statute gives no discretion but requires the judge, if the petition is in proper form and duly verified, to grant the petition and allow the change of venue. It was so held in Simpson v. Simpson, 165 Ill. App. 515, where a bill for separate maintenance had been filed, returnable to the October term 1910 of the circuit court. Among other relief plaintiff there asked for the custody of two minor children and for temporary alimony during the pendency of the suit, as well as for solicitors’ fees. Early in November of that year defendant gave notice of an application for change of venue in the cause on account of the prejudice of the trial judge, and on the first day of the term the petition for change of venue was filed and taken under advisement. Subsequently, on November 17th, plaintiff presented her petition for alimony pendente lite, and upon consideration thereof the court on that day granted the petition and decreed that defendant pay solicitors’ fees and temporary alimony for the support of plaintiff and her minor child until the further order of the court. On the same day upon which the decree was entered, defendant’s motion for a change of venue was allowed. The only question considered by the court in that case was whether the chancellor had authority to enter a decree for solicitors’ fees and temporary alimony after the petition for a change of venue, on account of the prejudice of the trial judge, sufficient in form and verified as required by law, had been presented to the court and due notice thereof given to the adverse party. The Appellate Court concluded that “after the petition is presented, the judge named therein has no power to render any further order therein, except such as may be made in connection with the one which allows the change of venue.” Plaintiff in that proceeding also relied. on section 11 of chapter 146 of the revised statutes [Jones Ill. Stats. Ann. 107.326], hereinbefore set forth, but the court held that the provisions of the decree for solicitors’ fees and alimony were evidently not intended as the equitable terms and conditions on which the order for a change of venue was made, and concluded by saying that “in fact, that decree was entered and appealed from as a separate proceeding before the change of venue was allowed, and there is nothing in the record to indicate any connection between the decree appealed from and the order for the change of venue,” and reversed the decree accordingly.

A like conclusion was reached in Davies v. Davies, 247 Ill. App. 313, wherein the court following the ruling in Simpson v. Simpson, supra, held that if a petition is in proper form the change of venue must be allowed, and that after it is presented the judge therein named has no power to enter any further order except such as may be made in connection with the change of venue. In Mockler v. David F. Thomas & Co., 273 Ill. App. 121, the court denied a petition for a change of venue and ordered the parties to proceed with the trial. It was there insisted on behalf of plaintiff that the petition was filed for delay and not made in apt time. The reviewing court, however, held that where a petition for a change of venue, charging prejudice of the judge, is regular in form, subsequent proceedings are void, and if the petition be properly presented, a court may not consider whether or not the petition was filed for delay.

Plaintiffs’ counsel argue that safety to the rights of the parties and the protection of plaintiffs’ property rights required the immediate entry of the order for temporary injunction, prior to the allowance of the change of venue. We do not pass upon the question whether plaintiffs were entitled to a temporary restraining order, and nothing in this opinion should be construed as prejudicial to the rights of plaintiffs to proceed with their motion before the chancellor to whom the cause now stands assigned. While it may well be true that the exigencies of the case required prompt action to preserve the rights of the parties until a full hearing might be had, it is not denied that Judge Finnegan, to whom the matter was assigned on the day that the change of venue was allowed, was immediately available, and that plaintiffs could have presented their application for a temporary injunction to him the very morning on which Judge Rush issued the injunction.

Obviously the provisions of section 11 of the Venue Act were not intended to give a judge named in a petition for change of venue the right to decide the very question which defendants believed his prejudice disqualified him from determining. The very filing of the petition for change of venue challenged the fairness of the chancellor to pass upon the motion for a temporary injunction. The courts hold that a change of venue is not a matter of practice, but a substantial right of a litigant. (Witherstine v. Snyder, 231 Ill. App. 251; Mockler v. David F. Thomas & Co., 273 Ill. App. 121.) To allow the chancellor to pass upon the motion for a temporary injunction after the petition for a change of venue had been presented, would nullify the intent and purpose of the venue act.

The order of the circuit court granting the temporary injunction is reversed.

Order reversed.

Scanlan, P. J., and Sullivan, J., concur.


author: Mr. Presiding Justice Fulton

text:
    People of the State of Illinois, Defendant in Error, v. Fred Klemick, Plaintiff in Error.
    Gen. No. 9,276.

      Heard in this court at the January term, 1941.
    Opinion filed April 14, 1941.
    Rehearing denied October 17, 1941.
    Lynn S. Corbly and Roy R. Cline, both of Champaign, for plaintiff in error.
    William L. Springer, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

The plaintiff in error, Fred Klemick, herein called the defendant, was indicted at the September term, 1939, of the circuit court of Champaign county, for the offense of keeping a common gaming house, at 113, 113½, 115 and 115½ North Market street, in the city of Champaign, Illinois. The indictment was returned on November 2, 1939, and consisted of three counts all alleging substantially the same offense.

Upon motion of the State the cause was certified to the county court of Champaign county for trial. Upon arraignment, the defendant pleaded not guilty. The case came on for trial on the 17th day of June 1940, at which time the State’s Attorney asked and was given leave to file an information charging the offense of keeping a common gaming house, and also charging a prior conviction. Upon the further motion of the State the two cases, that is, the indictment and the information, as amended to charge a second offense, were consolidated for trial over the objection of the defendant. As a result of a trial by jury, the defendant was found guilty of keeping a common gaming-house as charged in the first, second and third counts of the indictment filed in the county court on the 26th day of January 1940, and also found guilty as charged in the information filed on the 18th day of June 1940. The judgment of the court on the verdict found the defendant to be guilty of a second offense of keeping a common gaming house and fined him $500, and costs and sentenced him to the Illinois State Farm at Vandalia for one year.

The case is brought to this court by writ of error seeking to reverse such judgment.

It is insisted very earnestly on the part of the defendant that the court erred in permitting the amendment charging- second offense to be made and in consolidating the indictment and the amended information for trial; that the amendment filed to the information was equivalent to amending an indictment and that the defendant was thereby .compelled to go to trial on two causes of action at the same time.

We do not find that this exact question has been passed upon by our courts. It has been definitely held by the Supreme Court of Illinois, that an indictment returned by a grand jury cannot be amended. Gannon v. People, 127 Ill. 507; Patrick v. People, 132 Ill. 529. It has just as positively been held that in matters of amendment, the information stands on entirely different grounds from an indictment, and may be amended to any extent which the judge admits to be consistent with the orderly conduct of judicial business with the public interest and with private rights. Long v. People, 135 Ill. 435, 441; People v. Fenshy, 297 Ill. 440. In People v. Jacobson, 247 Ill. 394, where a defendant went to trial without objection on an original and an amended information the court said on page 398, “Each information charged a violation of the same section of the Statute, which was a misdemeanor. Each offense was of the same grade and subjected the offender to the same punishment. The charge of two different misdemeanors of the same nature may be embraced in separate counts of the same information. In the case of misdemeanors the joinder of several offenses of the same character will not, in general, vitiate in any stage of the prosecution.”

In the present case we feel that it was perfectly proper for the court to consolidate the indictment and the original information, both of which charged a violation of the same section of the statute, covered offenses of the same grade and subjected the offender to the same punishment, but when the amendment was made charging a second offense or a prior conviction, the defendant was immediately subjected to much more severe punishment on conviction than could have been imposed upon him under the indictment. Par. 325, ch. 38, Ill. Rev. Stat. (State Bar Ed.) [Jones Ill. Stats. Ann. 37.255], provides that whoever keeps a common gaming house shall upon conviction, for the first offense, be fined not less than $100, and for the second offense be fined not less than $500, and be confined in the county jail not less than 6 months. Compelling the defendant to go to trial on the indictment and on the amended information at the same time was, we believe, a violation of his right to a fair and impartial trial upon the indictment.

The first conviction upon which the State relies resulted from an indictment charging defendant with keeping a common gaming house, returned by the grand jury on April 12, 1939. After trial, a verdict of guilty and the overruling of a motion for a new trial, judgment was entered upon the verdict on the 10th day of November 1939. During the pendency of those proceedings, the indictment in this case charging the same offense was returned on the 2nd day of November 1939. On the trial all the evidence presented by the state consisted of exhibits taken and facts occurring prior to November 10, 1939. It is the contention of the defendant that evidence of a second offense must necessarily be confined to acts committed subsequent to the date of the first conviction.

The decisions of the various States do not appear to be uniform on this question, some holding that the word “offense” within a statute providing additional punishment for second offense takes place when the criminal act is committed, irrespective of time of conviction, so long as the conviction occurs before return of indictment charging second offense. State v. McCormick, 104 N. J. L. 288, 140 Atl. 297. Other States hold that one is not subject to the penalty imposed by statute for a second offense for an act committed after a verdict had been returned against him for the first offense but before sentence thereon. Commonwealth v. McDermott, 224 Pa. 363, 73 Atl. 427.

We are inclined to the opinion that section 325 of our statute above referred to more properly falls within the latter rule. In the New Jersey case the acts charged were separate and distinct violations against the prohibition laws. In the present case it is for keeping a common gaming house. The words “upon conviction” just prior to the fixing of penalties for first and second offenses, in our statute, do not appear to warrant the cumulation of a number of cases occurring on successive days but contemplates increased punishment for a person, who, after conviction, does not reform, but persists in committing other offenses of a similar character. It is our judgment that the court improperly admitted evidence in this case of violations occurring prior to the date of the first conviction on November 10, 1939.

This appears to have been the procedure followed in the case of People v. Lawrence, 314 Ill. 292.

Many other errors have been assigned and briefed by defendant, but the two problems discussed in this opinion are the most serious ones and present somewhat new and novel questions under the practice in Illinois.

Because we believe that the irregularities set forth herein deprived the defendant of that fair and impartial trial awarded to all defendants charged with crime, the sentence and judgment of the county court of Champaign county, is hereby reversed.

Reversed.