author: Mr. Justice Jett

text:
    Florence B. Brewster, Appellee, v. Rockford Public Service Company, Appellant.
    Gen. No. 8,108.

      Opinion filed May 3, 1930.
    Hall & Dusher, for appellant.
    Frank E. Maynard, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This suit was brought by Florence B. Brewster, appellee, hereinafter referred to as plaintiff, against the Rockford Public Service Company, appellant, hereinafter called the defendant, to recover damages the plaintiff claims to have sustained as a result of the negligence of the defendant.

The injury complained of resulted from a collision between the automobile of the plaintiff and the street car of the defendant, on December 17, 1927, at the intersection of 6th Avenue and 12th Street in the City of Rockford. Sixth Avenue extends east and west and 12th Street extends north and south. The street car tracks of the defendant extend along 5th Avenue which is one block north of 6th Avenue to 12th Street. The tracks turn south at the corner of 5th Avenue and 12th Street, beyond 6th Avenue. The tracks are in the center of 12th Street, which is a distance of about 350 feet from the south side of the intersection of 12th Street and 5th Avenue, to the north side of the intersection of 12th Street and 6th Avenue. Twelfth Street at its intersection with 6th Avenue is 37 feet and 10 inches in width, and the distance from the east car track to the east side of the intersection of 12th Street and 6th Avenue is 16 feet, 5 inches, and the distance between the rails in the street car track is 4 feet, 9 inches.

The automobile in which plaintiff was riding belonged to her, and was being driven by her husband at her direction and suggestion at the time of the collision. The automobile was being driven west on 6th Avenue, on the right-hand or north side of the street. The street car was coming from 5th Avenue to 6th Avenue. The collision occurred south of the center of the intersection, and in the middle of the afternoon on the day in question.

The declaration consists of two counts. The first charged general negligence. The second count avers the location of the intersections substantially as in the first count, and that the defendant was possessed of an electric car, operated and propelled by electricity upon its line of railway, which was in charge of a servant of the defendant, and was traveling in a southern direction, and then the count continues as follows: — “And the plaintiff avers that while she was riding in said automobile as a passenger therein, as aforesaid, in and along the street or public thoroughfare first above mentioned, and at or near the intersection thereof with the said line of railway of the defendant as aforesaid, she, the plaintiff, was observing a proper regard for her own safety, and was in the exercise of all due care, caution and -vigilance.

“And the plaintiff avers that the driver of said automobile in which the plaintiff was riding as aforesaid, at the time and place in question, was using all due care and caution for his own safety, and for the safety of plaintiff, and for the safety of his said automobile, and for the safety of others, and was in the exercise of due care, caution and vigilance.

“Yet the defendant, by its servant as aforesaid, so wilfully, wantonly, carelessly and negligently, and in utter disregard for the safety of plaintiff and others, drove and operated the street car of the defendant, at the time and place in question, that by reason of the wilful, wanton, careless and negligent and improper conduct of the defendant, by its said servant in that behalf, the said car struck and collided with the said automobile, and thereby the plaintiff was then and there thrown with great force and violence out of and from the said automobile,” etc.

To the declaration the defendant pleaded the general issue. A jury trial was had resulting in a verdict in favor of the plaintiff, and assessed her damages at the sum of $1,221. At the close of all the evidence a motion was made for a peremptory instruction to find the defendant not guilty, which motion was overruled and the instruction refused. Motions for a new trial and in arrest of judgment by the defendant were made, overruled, and this appeal followed.

The errors relied upon by the defendant in support of its contention for reversal of the judgment, are, that the defendant was not guilty of any negligence; that the plaintiff was guilty of contributory negligence; that improper instructions were given on behalf of the plaintiff, and proper instructions were tendered by the defendant, which were refused.

There may be some basis in the evidence for the contention of appellant that the verdict is against the manifest weight of the evidence, especially in connection with the question of due care on the part of plaintiff’s husband, her agent in driving and handling of said car, but owing to the view we have reached in the cause, we will refrain from discussing the weight of the evidence further then to say that the evidence is of such character as to render it necessary that the instruction's» be substantially correct. It is urged by the defendant that the court erred in giving a number of instructions, particularly the 3rd, 8th and 9th. The 3rd instruction is as follows:

“3 . . . The Court instructs the jury that a person, or corporation running a street car along and upon the highway, or public street, must have due regard for the safety of others and must use ordinary and reasonable care under all the circumstances in the case to avoid an injury to others. Therefore, if you believe from the evidence brought out in this case that the defendant by and through its agents and servants could have stopped the street car in question and avoided the accident complained of by the use of ordinary care and caution on the part of the driver of the said street car, and if you further believe from the evidence that the plaintiff was injured as alleged in her declaration without any fault on her part, because of the negligence of the defendant, by and through its servants, in the management of the said street car, then you should find the defendant guilty. ’ ’

This instruction • directs a verdict. It carries throughout the assumption of negligence on the part of the defendant and does not properly leave the question to the jury, and does not submit to the jury the question as to whether or not appellee’s husband, the driver of said car, was in the exercise of due care for the safety of appellee and her said automobile.

Instruction 8, complained of by the defendant, reads as follows: — “8. . . . The court instructs the jury that as a matter of law that in order to entitle the plaintiff to recover in this case, it is not necessary for her to show that under no circumstances could she have avoided the injury to herself, but all that is necessary for her to show by a preponderance of the evidence is that she and the driver of her automobile at the time of the accident in question, and immediately prior thereto, used ordinary and reasonable care and caution for her safety, and that the street car driver or operator was careless in some degree that caused the accident and injury to the plaintiff.”

This instruction informs the jury that in order to entitle the plaintiff to recover, it is not necessary for her to show that under no circumstances could she have avoided the injury to herself, but all that is required for her to show by a preponderance of the evidence, is that she and the driver of her automobile, at the time of the accident in question, and immediately prior thereto, used ordinary and reasonable care and caution for her safety, and that the street car driver or operator was careless in some degree that caused the accident and injury to the plaintiff. We think it is erroneous in stating that in order to entitle the plaintiff to recover, all she would have to do so far as the alleged negligence of the defendant is concerned, is to show that the street car operator was careless in some degree. The rule is that before the plaintiff could recover she must prove that the collision occurred by reason of the negligence on the part of the defendant charged in the declaration or some count thereof, and that such negligence was the proximate cause of the injury.

The instruction is also erroneous in stating to the jury it is not necessary for her, the plaintiff, to show that under no circumstances could she have avoided the injury to herself. Plaintiff and her husband were required to exercise ordinary care for the safety of the plaintiff and her automobile just prior to, and at the time of the collision in question. The instruction, is argumentative and its tendency would be to mislead the jury.

Instruction 9 is as follows: — “9. The Court instructs the jury that it was the duty of the driver and operator of defendant’s street car, at the time and place of the accident in question, and immediately prior thereto, to have the said street car under such control as to be able to slow up or stop, if necessary, to avoid a collision with other persons or vehicles who were rightfully and lawfully using the public street at the time and place in question, and to exercise ordinary care and caution for the safety of others properly and legally upon the street, and, if you believe from a preponderance of the evidence, that the plaintiff and her husband driving the plaintiff’s automobile in which the plaintiff was riding, were rightfully and lawfully using the public street at the time and place of the accident in question, and immediately prior thereto, and that the defendant, by and through its servant or agent, ran, drove, and managed the said street car in a reckless, careless and indifferent manner and thereby caused the accident and injury to the plaintiff, then, you are instructed that the plaintiff should recover in this case, such sum or sums of money as will fully and completely compensate her for her damages and physical injuries received, if any. ’ ’

This instruction submits to the jury that it was the duty of the defendant at the time and just prior to the collision, to have the said street car under such control as to be able to slow up or stop if necessary, to avoid collision with other persons or vehicles who were rightfully and lawfully using the public street at the time and place in question. So far as the use of the streets or public highways is concerned, all persons have the lawful right to use the same. The question for the jury to determine was whether or not the plaintiff and the driver of her car, just prior to and at the time of the collision, were in the exercise of due care for the safety of the plaintiff and her said automobile.

Said instruction further tells the jury that if they find that the plaintiff and her husband, the driver of the car, were rightfully and lawfully using the public street at the time and place of the accident in question, and immediately prior thereto, and that the defendant by and through its agents or servants, ran, drove and managed the said street car in a reckless, careless and indifferent manner, and thereby caused the accident and injury to the plaintiff, that then appellee was entitled to recover without requiring the jury to find due care on the part of the plaintiff and her husband, the driver of said car, just prior to and at the time of said collision.

This instruction was evidently drawn and given on the theory that the second count of the declaration charged the defendant with wilful and wanton injury to the plaintiff and her automobile. It has already been seen that the declaration avers that the defendant, by its servants, so wilfully, wantonly, carelessly and negligently, and in utter disregard for the safety of others, drove and operated the street car of the defendant, at the time and place in question, that by reason of the wilful, wanton, careless, and negligent and improper conduct of the defendant by its said servants in that behalf, the said car struck and collided with the said automobile, and thereby the plaintiff was then and there thrown with great force and violence out of, and from said automobile.

In Burns v. Chicago & A. R. Co., 229 Ill. App. 170, the court at page 190 said, “It is to be noted that there is a distinction between negligence and wilfulness. Negligence presumes heedlessness, carelessness, even recklessness, without the purpose or intent to injure, while the very gist of wilfulness and wantonness presumes the intent to injure. Negligence is not wilfulness or wantonness, and wilfulness or wantonness is not negligence. ’ ’

In view of the averments, the second count of the declaration only charges ordinary or common-law negligence. A charge of wilful and wanton conduct is only proper concerning the injury.

Furthermore, it will be observed that said instruction 9 did not submit to the jury the question of wilful and wanton conduct on the part of the defendant, so as to eliminate the question of due care on the part of the plaintiff, had the declaration been one charging the defendant with wilful and wanton injury to. the plaintiff. Since the second count charged only general negligence, the instruction was erroneous for failure to require plaintiff and the driver of her automobile, to be in the exercise of due care and caution immediately before and at the time of the collision.

The rule is that where an instruction undertakes to state the facts necessary to be proven to entitle a plaintiff to recover, it must contain all of the material facts, and where an instruction directs a verdict, a failure to include all such facts is fatal and cannot be cured by other instructions in the case. Gage v. City of Vienna, 196 Ill. App. 585-591.

Where the court directed a particular verdict, if the jury should find certain facts, the instruction must embrace all the facts and conditions essential to such a verdict. Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, 531.

Where an instruction assumes to direct a verdict, if the jury believe from the evidence certain stated facts are true, it is error to omit from the hypothesis any material, disputed element of fact as to which there is any competent evidence, and such an error cannot be cured by other instructions. Watson v. Wilber Mercantile Agency, 183 Ill. App. 231, 232.

Grifenhan v. Chicago Rys. Co., 299 Ill. 590, was a case in which the defendant in error collided with the street car of the plaintiff in error. It appears that the injuries for which the defendant in error recovered her judgment, grew out of a collision between the street car of plaintiff in error and the Ford automobile in which the defendant in error was a passenger. At page 595 the court among other things said, “Plaintiff was a passenger in this automobile, and at the time of the accident was in the rear seat on the left-hand side. The curtains were on the automobile, but plaintiff could see the street car through the transparent windows in the curtains, and could see the street car track and the paved roadway through the windshield. Before plaintiff could recover, it was necessary for her to prove that she was in the exercise of ordinary care for her own safety, and she was not relieved from that duty because she was riding in an automobile.”

It is also urged that the court erred in refusing, to give its 7th, 8th and 9th refused instructions. Refused instructions 7, 8 and 9, tendered by the defendant, so far as they state correct principles of law, were fully covered by other instructions given on behalf of the defendant.

For the reasons assigned we are of the opinion that the judgment of the circuit court of Winnebago county should be reversed and the cause remanded, which is accordingly done.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Jones

license: Public Domain

text:
    Ward L. Candor et al., Appellees, v. Mercer County State Bank et al., Appellants.
    Gen. No. 8,193.

      Opinion filed May 3, 1930.
    Marsh, Lewis & Thompson, for appellants.
    Church & Califf and Walter L. Mannon, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.

This is a suit in equity to enforce the liability of a number of stockholders in an insolvent bank under section 6, Cahill’s St. ch. 16a, H 6, entitled “Banks.” A decree was rendered in favor of the complainants and the defeated stockholders have brought the cause to this court by appeal.

On and prior to Saturday, December 5, 1925, the Mercer County State Bank was a going, but insolvent, concern. After the close of business on that day, the men who constituted its board of directors entered into negotiations with the.Aledo State Bank. As a result thereof a contract was signed whereby the Aledo State Bank assumed certain obligations and agreed to liquidate the assets of the Mercer County State Bank.

The complainants are the Aledo State Bank and those who constituted the board of directors of the insolvent bank, excepting however, that Ethel J. Poffenbarger and Bichard L. Poffenbarger sue as executors of the last will and testament of Bert Poffenbarger, now deceased, who was a director at the date of the contract. The bill, as amended, alleges that the Mercer County State Bank on December 7, 1925, was being pressed for payment of its indebtedness in excess of its available funds and in order to safeguard and proteet its creditors, borrowed the sum of $60,000 from the individual complainants, including Bert Poifenbarger; that to secure said indebtedness, the Mercer County State Bank indorsed with recourse against it and delivered to said persons, notes of the face value of $69,998.32, and assigned and transferred to them judgments of the face value of $20,680.02; that the Mercer County State Bank guaranteed the payment of said notes and judgments with 7 per cent interest thereon; that nothing has been realized on said notes or judgments and the same are worthless; that the borrowing of said money was duly authorized by the board of directors of said bank by a resolution passed therefor.

The bill also alleges that subsequent to the loan of said money and upon the advice of the auditor of public accounts of the State of Illinois, in order to protect and safeguard the creditors of said bank, the above-mentioned agreement with the Aledo State Bank was entered into; that to secure the Aledo State Bank against loss, the Mercer County State Bank executed its promissory note for $249,958.74, dated December 7, 1925, and payable on demand, with interest at 7 per cent per annum to be figured monthly on the unpaid balance until paid; that the Mercer County State Bank pledged, assigned, and delivered to the Aledo State Bank as security for the payment of said note, all of its assets as set out in a schedule and made a part of said agreement; that the Aledo State Bank required the Mercer County State Bank to raise $70,000 as a condition precedent to entering into said liquidating agreement; and that the loan of $60,000 made by the individual complainants as above mentioned was in compliance with said requirement.

The bill contains many other allegations which are unnecessary to set out in this opinion. Enough of the bill has been recited to show the character of the arrangement between the two banks as well as the nature of the indebtedness claimed to be due to the respective complainants. Much of the assets assigned to the Aledo State Bank was uncollectible. As a result, that bank sustained a loss of $15,000. The individual complainants were not able to realize anything on the securities transferred to them and their loss was $60,000. The total loss to complainants was $75,000. An assessment was levied against all of the stockholders to the extent of their full liability and most of them paid their assessments. The defendants, however, refused to pay and this suit was brought.

A cross-bill was filed to which the court sustained a demurrer. Later, by leave of court, three pleas were filed and subsequently amended. The pleas having been set down for argument, on motion of the complainants, were held to be insufficient by the chancellor and accordingly were overruled. The defendants elected to stand by their pleas and refused to answer over. A decree was entered giving judgment and awarding execution against them, according to their respective liabilities, aggregating $8,500.

The sufficiency of the pleas is the only question before us. The first and second pleas relate to so much of the bill as pertains to the individual complainants’ right of recovery. The substance of those pleas is that the Mercer County State Bank, from the time it closed Saturday, December 5, 1925, ceased to transact any banking business because of its insolvency; that the directors and other officials of the bank negligently selected by them, had carelessly, made loans to persons notoriously known in the community of Aledo to be insolvent and not entitled to credit; that upon slight inquiry by the directors, knowledge could have been obtained of the insolvent condition of the persons to whom credit was extended; that the loans so negligently made exceed the sum of $75,000 and are unpaid; that at the time the said directors alleged they loaned $60,000 to the Mercer County State Bank, they had knowledge of the insolvency of such bank, by reason whereof the Mercer County State Bank is not indebted to said complainants except as alleged.

The third plea is similar to the others, but is pleaded to that part of the bill which seeks to ascertain the amount due to the Aledo State Bank. The plea charges that the Aledo State Bank, at the time of taking the note of the Mercer County State Bank, had knowledge of the insolvent condition of the Mercer County State Bank and of the liability of the directors thereof on account of their negligent conduct as before set out.

Two contentions are made by counsel for appellants in their brief. The first is that the individual complainants, meaning the directors of the Mercer County State Bank and the executors above named, are not creditors of the Mercer County State Bank and therefore have no right to sue; the second is that the Aledo State Bank is not entitled to relief, because of its knowledge of the insolvent condition of the Mercer County State Bank and of the liability of the directors of that bank at the time it entered into the liquidating agreement. If the amended pleas or any one of them present a defense, the decree of the circuit court is erroneous, but if no defense is presented by any of such pleas, the decree must be affirmed.

For our convenience, we will first dispose of the contention relative to the third plea, which denies the right of the Aledo State Bank to relief, because it had knowledge when it entered into the liquidating agreement that the Mercer County State Bank was insolvent and that its directors had been negligent in making loans.

It would be difficult to induce a solvent bank to negotiate with another bank known to .be in failing circumstances if such knowledge would taint the transaction. We have held that there is nothing illegal or immoral in such a transaction. The protection of depositors, the welfare of other banks, and general business conditions of a community often demand such action by solvent banks, and in the absence of fraud, such transactions are not only upheld, but are encouraged. (Sherrard State Bank v. Vernon, 243 Ill. App. 122.)

The fact that the Aledo State Bank knew that the Mercer County State Bank was insolvent and that the directors of that bank were careless and negligent in the conduct of its business can be no bar to a suit by the Aledo State Bank against the stockholders, of the insolvent bank for money owed under the express terms of the liquidating agreement. It makes no difference that the solvent bank knows the directors of the insolvent bank are indebted to their own bank. Though a bank were made insolvent by defalcations of its directors, there would be no legal obstacle against its entering into a contract with another bank to protect and pay depositors. Knowledge on the part of the absorbing bank of such a situation would not discharge the liability of the stockholders of the insolvent bank. Their liability attaches by reason of such insolvency. In the instant ease the. stockholders were individually liable and they, including directors, if any, who failed to pay the assessments levied against them, may be required to do it. The Aledo State Bank is entitled to the relief it-, seeks and the third plea which is directed against it alone presents no defense and the chancellor’s ruling to that effect was correct. The point is raised that the defendants are not liable because the liquidating agreement was not ratified by the stockholders. This point has heretofore ■ been settled adversely to such contention. (Sherrard State Bank v. Vernon, supra; Beardstown Pearl Button Co. v. Oswald, 130 Ill. App. 290.) The general rule is that where a business is in a failing condition and has become financially involved and insolvent, and the creditors are pressing their claims, the directors may dispose of the assets without the sanetion of the stockholders, when it is deemed of imperative necessity. (Oskaloosa Sav. Bank v. Mahaska County State Bank, 205 Iowa 1351.) The cases which support this rule are collated in 5 A. L. R. 932 and 60 A. L. R. 1210.

The first and second pleas are directed against the individual complainants. Neither plea avers that the directors became or are indebted to the bank by reason of their negligent conduct. The alleged acts of negligence are definitely stated, but there is a total lack and want of averment of liability arising from such negligence. The only language in the pleas referring in any way to the directors’ liability is found in the following paragraph of the first plea. It is also contained in substance in the other pleas, to wit:

“And these defendants further say that said complainants on said December 7, 1925, at the time they allege they loaned $60,000' to the defendant Mercer County State Bank had knowledge of the insolvent condition of said Mercer County State Bank and knowledge of the liability of said directors to said bank by reason of the facts hereinbefore alleged.”

Nowhere is it stated what that liability is or the extent of it. The pleas conclude as follows:

“Therefore, these defendants plead said knowledge on the part of said complainants of the insolvency of the Mercer County State Bank in bar,” etc.

It will be seen that the pleas are framed on the theory that mere knowledge of the bank’s insolvency and of the directors’ negligence constitutes a bar to the right of the individual complainants to recover. The pleas do not deny that the directors are creditors of the Mercer County State Bank. They say that the bank is not indebted to the complainants “except as alleged.” The briefs of appellants claim that the directors are not creditors at all, but the pleas make no such claim. The most that can be said of them is that. they charge the directors’ loan to the bank was invalid and therefore did not create the relation of debtor and creditor between them. We cannot agree with that contention. The directors had a right to loan money to the bank and having done so, the relation of debtor and creditor was established. If the bank had a set-off or counterclaim, it should have been pleaded. This was not done.

It is contended that the Mercer County State Bank was without authority to borrow money after the close of business Saturday, December 5, 1925. It is true that the bank had no right to do a general banking business after that time, but undoubtedly it had every right to liquidate its affairs and as an incident thereto, borrow money, dispose of assets, and collect loans. To deny it this right would freeze its assets and paralyze its opportunity to pay its creditors. Because of the matters above set forth, we are of the opinion that no defense to the bill of complaint is presented by any of the pleas.

The amount due the Aledo State Bank is $15,000 and the assessment against the delinquent stockholders is but $8,500. No further sum can be adjudged against them. They have no real interest in the distribution which may be made among the respective claimants.

Under all the circumstances, the decree should be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Boggs

text:
    Board of Education of Earlville Community High School District No. 380, LaSalle County, Illinois, Appellee, v. Board of Education of Non-High School District of LaSalle County, Illinois, Appellant.
    Gen. No. 8,191.

      Opinion filed May 13, 1930.
    Hibbs & Pool, for appellant.
    Wiley & Wiley, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted by appellee against appellant in the circuit court of LaSalle county, to recover the balance alleged to be due from appellant for the years 1925-1926 and 1926-1927 for the attendance of non-high school district pupils at the Earlville community high school.

The declaration consisted of the common counts, to which appellant filed a plea of the general issue, accompanied by a stipulation that all proper defenses might be made under the same, as though specially pleaded. A jury was waived and a trial was had, resulting in a finding and judgment against appellant for the sum of $1,158.70. To reverse said judgment, this appeal is prosecuted.

The bill of particulars sets forth the items on which appellee’s claim is based, and concludes as follows:

“Total expenditures for school year 1925-1926 $14,405.00
Average number of pupils, including tuition pupils 115
Per capita cost $125.26
Total tuition for the twelve students from the non-high school territory of LaSalle County, Illinois, who attended the plaintiff’s high school during the year 1925-1926 (does not exceed per capita cost) $1,336.10
Amount received June 20, 1926, from the Non-High School Board of Education $1,173.00
Unpaid balance due for school year 1925-1926 $163.10
Total expenditures for school year 1926-1927 $23,079.00
Average number of pupils, including tuition pupils 110
Per capita cost $209.80
Total tuition for the thirteen students from the non-high school territory of LaSalle county, Illinois, who attended the plaintiff’s high school during the year 1926-1927 (does not exceed per capita cost) $2,727.40
Amount received June 7,1927, from Non-High School Board of Education $1,430.00
Unpaid balance due for school year 1926-1927 $1,297.40”

It is first contended by appellant that the court erred in allowing the items for “Textbooks, stationery and supplies,” amounting to $1,149 for 1925-1926 and $1,193 for 1926-1927; that these items were not properly included in the statement of total expenditures, for the reason that their usable value would extend beyond one year. While certain of said items have a usable value beyond the period of one year, the testimony tends to show that the expenditure therefor is of annual occurrence; that the amount so expended does not vary materially, and that such purchases are, in effect, in the nature of replacements. We are of the opinion that the court did not err in this ruling.

The item of $2,194.69 for “Movable equipment and apparatus not fastened to building,” in the statement for 1926-1927, was also objected to. The court held the objection well taken as to the cost of said articles, which were, for the most part, of a permanent character, but held that, as certain of said articles would have to be renewed from time to time, appellee was entitled to an allowance for depreciation, and reduced this item to $642.13. This ruling was warranted by the evidence.

It is next contended that the court erred in its ruling on the amount allowed for premiums on insurance. Appellee had insured its property for five years, at a cost of four times the annual premium. There is a conflict in the evidence as to whether the amount paid was $1,330 or $1,236.31. It is insisted by counsel for appellant that there should only be included in said statement one-fifth of $1,236.31, while appellee insists that appellant should be charged the annual premium rate. The court allowed $336.31. We hold that the amount properly to be included in this item would be the annual premium. If figured on the basis of $1,330, said amount should have been $332.50, or, on the basis of $1,236.31, it would be $309.08. However, as appellants only pay about one-tenth of said item, the difference is so slight that the discrepancy should be disregarded, and the holding of the court sustained.

Lastly, it is contended that the court erred in holding that the item of $3,500 for “Depreciation and use of school building,” was properly included in said statement.

The testimony discloses that, in making up this item, appellee estimated the value of the building and permanent fixtures at $70,000. On this sum, depreciation was figured at 2% per cent, and use of building at 2% per cent, a total for the two items of 5 per cent, resulting in said item of $3,500.

Counsel for appellant concedes that appellee is entitled to an allowance for depreciation, but insists that the rate is too high. The entire charge for use of the building is objected to. Counsel for appellant concedes that if appellee did not own its building, but paid rent therefor, such charge would be proper, but contends that, to allow for use of building owned by appellee, would enable it to profit by its investment, and that such was not the intention of the statute. Counsel for appellee insists that appellant’s construction of the statute is strained; that the intendment thereof warrants a charge for use of buildings owned by a high school district, in making up the amount to be charged to pupils from other districts.

The only case in which the Supreme Court has discussed this question is People v. Chicago & N. W. R. Co., 286 Ill. 384. At page 395, the court says:

“That a reasonable tuition shall be paid for non-high school pupils has been recognized in this State. The right of the legislature to fix such reasonable tuition and the means of its payment, subject to the requirement that the privileges thereunder be extended equally to all children similarly situated, is likewise well established. (People v. Moore, supra; Cook v. Board of Directors, supra.) The act providing the tuition in this case meets these requirements. Section 96 of the act provides that the cost of maintenance, upon which the computation of the tuition is based, shall be ‘the total cost of maintaining such high school, ’ less interest paid on bonded indebtedness. It is evident that the legislature intended by this provision to secure as even a distribution of cost as it is possible to obtain; that the total cost of maintaining such high school should include all expenses incurred by the high school district in maintaining such high school, the rental of any buildings therefor not owned by the high school district, and a reasonable charge for the use and depreciation of buildings owned by the high school district; and that interest paid on bonded indebtedness should be excluded from such computation to avoid duplication, which would necessarily result if interest on bonded indebtedness as well as said use and depre-. ciation was to be charged. ’ ’

Counsel for appellant insist that “use” and “depreciation,” as used by the Supreme Court, are synonymous. An examination of said opinion discloses that the court used said language advisedly. The words “use” and “depreciation,” as defined in standard dictionaries, have entirely different meanings, and we have no right to hold that the Supreme Court did not take that fact into consideration in its use of said words. This position is supported by the fact that the court used said words conjunctively and not disjunctively, thereby indicating an intention that each should have its own meaning. While the language referred to was not necessary to the determination of the question before the court, it is so clear and explicit as to the proper construction of said statute, that it is our duty to follow the same in determining what should be included in said cost of maintenance. See also Board of Education v. Board of Education, 231 Ill. App. 415-417.

As no complaint is made as to the valuation of said building, or that the rate of 2% per cent is excessive if appellee is entitled to include a charge for use, we hold that the charge was properly allowed by the court.

The only complaint made by appellant as to the charge of depreciation is that appellee, as a basis therefor, estimated the life of its building at 40 years, whereas the testimony of appellant is to the effect that its life should be estimated at 66 years. The evidence in support of the contentions of the respective parties is conflicting, and as we are not able to say that the finding of the court is against the manifest weight of the evidence, we would not be warranted in disturbing the same.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. Sherman L. Hyatt et al., Appellants, v. M. J. Hogan et al., Appellees.
    Gen. No. 8,090.

      Opinion filed May 13, 1930.
    Russell O. Hanson, State’s Attorney, for appellants; Tom W. Smurr and Butters & Butters, of counsel.
    Richolson, Armstrong & O’Meara, for appellees; John H. Armstrong, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.

This is an appeal from an order denying the prayer of a petition for leave to file an information in the nature of a quo warranto against appellees as mayor and commissioners, respectively, of the village of Grotty. From the order of the circuit court denying the prayer of the petition, an appeal was taken to the Supreme Court and by that court was transferred to this court.

The petition alleges misappropriation of the funds ' of the village by voting the same to themselves in payment of goods and merchandise sold and services furnished by them to the village in violation of law, while holding their respective offices, except that Sheedy is charged only with voting for such payments to the other respondents; and it is averred that such conduct rendered them subject to removal from their respective offices.

The principal question in this case is whether or not quo warranto will lie to remove a municipal officer from his office for an alleged violation of his duty, until it has been previously determined, either by some court of competent jurisdiction or by a self-executing provision of the law, that such officer has forfeited his office.

Respondents are officers of a village operating under the commission form of government. Section 37 of the Commission Form of Government Act, Cahill’s St. eh. 24, If 360, provides that no officer of any such city or village shall be interested, directly or indirectly, in any contract or job for work or materials, or profits thereof, or services to be furnished or performed for the city or village, and that any violation of that section shall be deemed a misdemeanor and punished by a fine of not less than $100 or more than $500 and shall be ground for removal from office or employment; section . 5 of art. III of the City and Village Act and section 7 of art. VI of the same act contain similar prohibitions, without fixing a penalty for a violation thereof.

Section 208 of the Criminal Code, Cahill’s St. ch. 38, 436, provides that, “every person holding any public office,. . . who shall be guilty of diverting* any public money from the use or purpose for which it may have been appropriated or set apart by or under authority of law, ... or who shall be guilty of wilful and corrupt oppression, malfeasance or partiality, where no special provision shall have been made for the punishment thereof, shall be fined not exceeding $10,000, and may be removed from his office, trust, or employment. ’ ’

Section 3 of the Fraudulent and Corrupt Practices Act, Cahill’s St. ch. 102, If 3, provides that it shall not be lawful for any person holding any office to become in any manner interested, either directly or indirectly, in his own name or in the name of any other person or corporation, in any contract, or the performance of any work in the making or letting of which such officer may be called upon to act or vote.

Section 4 of the same act provides that any person holding any office who shall violate any of the provisions of the preceding sections, shall be deemed guilty of a misdemeanor and on conviction thereof, may be punished by confinement in the penitentiary for a term not less than one year or more than five years, or fined in a sum not less than $200 or more than $1,000, or both, in the discretion of the court before which such conviction shall be had; and, in addition thereto, any office or official position by any person or persons so convicted shall, by the fact of such conviction become vacant, and shall be so declared as part of the judgment of court.

Section 1 of the Quo Warranto Act, Cahill’s St. ch. 112, ff 1, provides that in case any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise, or if any public official shall have done, or suffered any act which by the provisions of law, works a forfeiture of his office, the Attorney-General or State’s Attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction, or any judge thereof in vacation, for leave to file an information in the nature of a quo warranto in the name of the People of the State of Illinois; (excepting constitutional officers) etc.

It is to be observed that none of the statutory provisions for depriving an officer of his office, on account of malfeasance, is self-executing; that is to say, none of the provisions of the several statutes declares that such malfeasance shall ipso facto work a forfeiture of the office. Since the' remedy by quo warranto, or information in the nature thereof, is employed only to test the actual right to an office or franchise, it follows that it can afford no relief from official misconduct and cannot be used to test the legality of the official action of public or corporate officers. Misconduct upon the part of a public officer is not of itself ground for forfeiting his office upon proceedings in quo warranto, unless such misconduct has been already judicially established. If, however, the acts of misconduct charged against the officer are declared by statute to work a forfeiture of his office, an information will lie, and judgment of ouster may be given against the officer upon the ground of such misconduct or breach of official duty. (High’s Extraordinary Legal Remedies, 3rd Edition, sec. 618; Burkholder v. People, 60 Colo. 46, 147 Pac. 347.)

If the act complained of does not ipso facto work a forfeiture, and is only a misdemeanor in office, on account of which the law provides the manner in which the vacancy is to be declared, it is held that quo warranto will not lie. A prior conviction is not necessary where the act on the part of the officer is declared to work a forfeiture without reference to such prior conviction, although the statute also makes the act a misdemeanor and provides a punishment on conviction thereof. But before the court can oust an officer from his office, it must be judicially determined that he has no right to hold the office; and if the alleged ground for ousting the officer is that he has forfeited his office by certain acts or omissions, it must be judicially determined, before he is ousted, that these acts or omissions work a forfeiture of the office, because the mere misconduct may not of itself be sufficient to work a forfeiture. (17 Ency. Pl. and Pr. 400.) The fact that duly qualified county commissioners are guilty of official misconduct does not ipso facto work a forfeiture of the office such as to authorize proceedings in quo warranto to oust them. (McDonough v. Bacon, 143 Ga. 283.) In State v. Dearing, 253 Mo. 604, it is held that the clause in the constitution providing that any officer who shall accept free passes shall forfeit his office is not self-executing and such officer cannot be ousted by quo warranto, but must be proceeded against under the statute providing for convictions of the offense and for the court trying the case to declare the office to be forfeited and vacant. Quo warranto is not the remedy where" there is no question as to the title of the office, and where the maladministration charged does not ipso facto work a forfeiture of the office. (Stanford v. Lynch, 147 Ga. 518, 94 S. E. 1001; McDonough v. Bacon, supra.)

Quo warranto is generally employed to try a person’s right to office and not to test the legality of his acts. (People v. Whitcomb, 55 Ill. 172.) It is not a proper proceeding to test the legality of the official acts of a public official. (People v. Taylor, 281 Ill. 355; People v. Baldridge, 267 Ill. 190; People v. Wyatt, 34 Ill. App. 454.) Until a forfeiture of the right of office is declared by competent authority or occurs by operation of the law, an officer may not be ousted by quo warranto. (People v. Bunyard, 147 Ill. App. 121.)

Appellants contend that because the Commission Form of Government Act provides that any violation of section 37 thereof “shall be ground for removal from office, ’ ’ whereas, before such amendment, the City and Village Act contained no such provision, it was intended by the legislature to provide by said section 37 that in municipalities operating under the commission form of government, officers are subject to removal by quo warranto for malfeasance in office without a prior conviction. The Commission Form of Government Act is a part of the City and Village Act, and was added thereto by amendment. The provisions, of the general act apply to municipalities operating under the amendment except in so far as they are changed by the amendment. It is fundamental that statutes must operate uniformly upon all persons similarly situated, and courts will not construe a statute so as to make it unconstitutional if any other reasonable construction can be placed upon it which will make it effectual. (Sturges v. City of Chicago, 237 Ill. 46.) Section 37 is not self-executing. It does not declare that a violation of its provisions shall constitute a forfeiture of an office, but that it shall be ground for removal. It does not have the effect of providing that such officers may be removed by quo warranto for malfeasance without a previous conviction.

In order to maintain the action in the case at bar, it was necessary that the petition show a forfeiture, either by operation of a self-executing law, or by the judgment of a court of competent jurisdiction. In the absence of any such showing, it was the duty of the trial court to dismiss the petition. The judgment was correct and is affirmed.

Judgment affirmed.


text:
    Steve Pelc and Veronica Pelc, Appellants, v. Gust Kulentis and Stavraula Kulentis, Appellees.
    Gen. No. 8,093.

      Opinion filed May 13, 1930.
    Siebel & Severin, for appellants; A. F. W. Siebel, of counsel.
    Arthur Bulkley, for appellees.
   Mr. Justice Jones

delivered the opinion of the court.

This appeal is prosecuted from a decree dismissing a bill filed by complainants to enjoin the defendants from alleged violations of a contract entered into between the parties on July 31,1922.

By the terms of the contract, defendants sold to complainants a retail grocery and meat market, including the real estate on which the business was located, and all the merchandise, goods, and chattels used in conducting the business, for the sum of $10,000. The contract provides that in consideration of such purchase and the further consideration of $10,000, defendants agree “not to engage in any retail grocery and meat market business in the City of North Chicago, County of Lake, and State of Illinois (where the business was being conducted), from the date of this agreement and also not to engage in any other kind of business in the City of North Chicago, County and State aforesaid within two blocks square from the above-described premises.”

The bill alleges that defendants are operating a retail grocery and meat market in a building within two blocks square of the building so purchased by complainants, soliciting their customers and others who would trade with them, and have induced some of them to do so, thereby depriving them of a large amount of business and profits, all in violation of the terms of the contract. A demurrer to the bill was sustained and the bill was dismissed for want of equity.

It is contended by complainants that the contract is only in partial restraint of trade; that in view of the surrounding circumstances as alleged in the bill, its terms were reasonable and the contract valid. On the other hand, defendants insist that the contract is void for the reason that the agreement not to engage in the grocery and meat business is unlimited as to time, and that it undertakes to prohibit defendants from engaging in any other business within two blocks of the premises purchased by complainants.

The law relating to contracts in restraint of trade has undergone definite changes and development coextensive with the progress of trade and commerce. Under the early common law of England, all agreements in restraint of a right to exercise a trade or calling were void as against public policy. This rule continued in force for 200 years. The expansion of business and commerce, however, eventually brought about judicial recognition that it was necessary to remodel the rule to meet- modern requirements, and a distinction between a general and a limited restraint of trade gradually found favor. Although the courts continued to treat contracts in total restraint of trade as void, they began to enforce contracts in partial restraint of trade, provided such contracts were not unreasonable. The tendency of modern decisions is to adopt the later rule, and it may be said that the general rule now is, that contracts in unreasonable restraint of trade are void, while contracts which impose a reasonable restraint upon trade are valid. Considered with reference to the situation, business and objects of the parties, and in the light of all the surrounding circumstances with reference to which the contract was made, if the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them, and not injurious to the public, the restraint will be held valid. The test applied to the question of reasonableness is whether the restraint is such only as to afford a fair protection to the interests of the party in whose favor it is given, and not so large as to interfere with the interests of the public. The result of the test must be determined from a practical consideration of the circumstances of each case, and the law seems to be well settled that the covenant embodying the restriction must be merely ancillary to the main purpose of a lawful contract, necessary to protect the covenantee in the enjoyment of the legitimate fruits of the contract, or to protect him from the dangers of an unjust use of those fruits by the other party. (6 R. C. L. Contracts, sec. 190 et seq.)

In Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616, it is said, “The authorities agree that contracts in partial restraint of trade, in order to be valid, must be reasonable as to time, place, terms, etc., manifesting an intention to simply protect the party relying upon the covenant in the reasonable restraint of unjust discrimination against him. Such contracts usually grow out of sales of property with the good will of a business, profession, partnership, etc.” To the same effect are Tarr v. Stearman, 264 Ill. 110 and Andrews v. Kingsbury, 212 Ill. 97.

The contract in the case at bar contains two covenants by defendants. The first is that they will not engage in any retail grocery and meat business in North Chicago from the date of the agreement. It is not claimed that the territorial restriction is invalid or unreasonable, but it is urged that a time limit must be fixed in any agreement in partial restraint of trade, in order that a court may pass upon its reasonableness, and that a failure to do so imposes a perpetual prohibition for all time under all circumstances, and makes such a contract void.

The precise question here has never been squarely at issue in a court of review in this State. In Tarr v. Stearman, 185 Ill. App. 45, later affirmed by the Supreme Court (Tarr v. Stearman, supra), some attention was given to that phase of a contract, but the decision was based upon a consideration of public policy arising out of the particular circumstances of the case. No such question is involved in this case.

The rule is well settled that any partial restraint of trade or an agreement not to transact business at specified places, or with particular persons, or beyond a limited distance, or not to practice a profession within reasonable bounds, if there be some legal consideration for the restraint, will not invalidate the agreement. If there is a reasonable limitation only, and a consideration capable of supporting the agreement, it will be upheld. (Linn v. Sigsbee, 67 Ill. 75.) A contract not in general restraint of trade, but only in partial and particular restraint thereof, where the consideration is adequate and the restriction reasonable, is not void as being against public policy. (Smith v. Leady, 47 Ill. App. 441; Stewart v. Challacombe & Ramsey, 11 Ill. App. 379; Cobbs v. Niblo, 6 Ill. App. 60; Gewirtz v. Abraham, 171 Ill. App. 433.) It is to be noted that in each of the cases cited, the contract there in litigation contained a restriction unlimited as to time.' While no opinion of a court of review in this State has turned upon the precise question, the general rule is that where a contract by which a person covenants not to engage in or carry on a particular business is limited as to territory and is reasonable and proper in other respects, the fact that the duration of the restriction is unlimited will not render the contract invalid, and this was true even according to the early rule. (13 C. J. Contracts, sec. 416.) That doctrine is not inconsistent with the holding in Southern Fire Brick & Clay Co. v. Garden City Sand Co., supra, Andrews v. Kingsbury, supra, or Tarr v. Stearman, supra. The services of no person can be so valuable to the public as to deprive him of the right to make an advantageous sale of his business upon the condition that he will not engage in competition with the buyer during the term of his own life, or that of the buyer, or for their joint lives. WHiere the contract is between individuals or between private corporations which do not belong to the quasi-public class, there is no reason why the general rule that the seller may not be allowed to fix the time for operation of the restriction, so as to command the highest market price for the property he disposes of, should apply. (6 R. C. L. Contracts, sec. 201; 13 C. J. Contracts, sec. 416.)

The law is well summarized in Union Strawboard Co. v. Bonfield, 193 Ill. 420, where it is said, “A contract in partial restraint of trade is valid provided it is founded upon a good consideration and only affords a reasonable protection to the interests of the party in whose favor it is imposed, and the prohibited area is reasonable, so as not to be injurious to the interests of the public and against public policy.” We are of the opinion that when considered with the restricted territory and the other circumstances shown by the bill, the limitation as to time is not void, but under the well settled rule is reasonable and valid.

The second covenant on the part of defendants is that they will not engage in any other kind of business in the City of North Chicago within two blocks square of the premises sold by them to complainants. No breach of that covenant is alleged by the bill, and an adjudication as to its validity is unnecessary in this case. The rule upon this subject is that if a contract is made consisting of two or more covenants, upon a valuable and legal consideration, and one of the covenants is illegal and the other is legal, if the covenants are so distinct that the portion which is legal may be severed from that which is illegal, so that each covenant may be considered as a distinct contract, the legal covenant can be enforced, and that which is illegal, disregarded. (People v. Economy Light & Power Co., 241 Ill. 290.) If one gives a good and valid consideration, and thereupon another promises to do two things, one legal and the other illegal, he shall be held to do that which is legal, unless the two are so mingled and bound together that they cannot be separated, in which case the whole promise is void. (Corcoran v. Lehigh & Franklin Coal Co., 138 Ill. 390; 13 C. J. Contracts, sec. 470; 6 R. C. L. Contracts, sec. 214.) The covenants in the case at bar are not in any way interdependent but are severable. The fact that the violation charged adopts the location described in the second covenant does not tend to make the covenants inseparable or to charge violation of the second covenant. It was proper to plead the close proximity of the business of defendants to that of complainants as tending to show damages suffered from the alleged breach. It was error to sustain the demurrer and dismiss the bill.

Therefore the order of the circuit court is reversed and the cause remanded for further proceedings in harmony with this opinion.

Reversed and remanded.


text:
      F. E. Wilson et al., Appellants, v. County of Marshall et al., Appellees.
    Gen. No. 8,100.

      Opinion filed May 13, 1930.
    Richard H. Radley and Richard H. Radley, Jr., for appellants.
    Robert A. Barnes, State’s Attorney, for appellees. Barnes & Magoon, Pro Se.

   Mr. Justice Jones

delivered the opinion of the court.

Appellants filed their bill in equity to restrain the county of Marshall and its county treasurer from paying, and R. M. Barnes, J. A. Magoon, and E. E. Horton, attorneys at law, practicing under the firm name of Barnes, Magoon & Horton, from receiving money under a contract entered into between the county of Marshall and said law firm; and also to require the law firm to return the sum of $500" paid on the contract.

The bill was filed December 12,1928. It alleges that complainants are taxpayers of Marshall county; that L. C. McMurtrie became State’s Attorney in 1924 and from thence until his death, on October 26, 1928, was the duly qualified and acting State’s Attorney; that on August 18,1928, the county, then seeking to recover money which it claimed Charles E. Anderson, a former county treasurer, had embezzled, entered into the contract in question with said law firm; that Robert A. Barnes was Assistant State’s Attorney for more than one year prior to the death of McMurtrie; that on November 5,1928, after the death of McMurtrie, the board of supervisors appointed said Robert A. Barnes State’s Attorney; that he was duly elected, to that office on November 6, 1928; and that he is now the duly qualified and acting State’s Attorney.

The contract is set out in haec verba, and provides that the county retains and employs said attorneys for ' the purpose of enforcing the collection of all liability under the official bond of Anderson, and authorizes and instructs them to bring suit against Anderson as principal, and all sureties and persons liable thereon, in the circuit court, and to prosecute the same in the Appellate and Supreme Courts, if necessary, upon the following terms, — a retainer of $500 and the further, sum of $1,000, if the suit be settled before trial, with contingent fees in case of further proceedings. The contract further provides that the county retains and employs said attorneys to assist the State’s Attorney in the preparation and trial of all criminal proceedings “now pending or which may hereafter be commenced” against Anderson, arising out of any shortage of the funds handled and controlled by him as county treasurer for a fee of $1,000.

The bill then alleges that on September 21,1928, said attorneys instituted the civil suit contemplated by the contract; that Anderson has been indicted for the alleged embezzlement, and that a trial may be had at "the January, 1929, term of the circuit court. It does not appear when such indictment was found or returned. The court sustained a demurrer to the bill and complainants having elected to stand by their bill, it was dismissed for want of equity.

It is the contention of appellants that counties can exercise only such powers as are expressly delegated by law, or necessarily implied from the powers granted; that the services contracted for are those which the law requires the State’s Attorney to perform; that there is no statute authorizing a county board to employ other counsel to perform such services under the circumstances shown by the record in this case; and that the contract is ultra vires and void.

By the act in relation to counties, section 23 of Cahill’s St. ch. 34, If 23, it is provided that the powers of the county as a body corporate or politic shall be exercised by the county board. By section 24 of the same act, it is provided that the county shall have power “to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers.” And it is provided by section 33, if 36 of that act that, “It shall be the duty of the county boards of each of the counties of this State to take and order suitable and proper measures for the prosecuting arid defending of all suits to be brought by or against their respective counties, and all suits which it may become necessary to prosecute or defend to enforce the collection of all taxes charged on the State assessment.”

The objection to the contract made by the counsel for appellants is that the county board had no authority under the law to select and employ counsel to prosecute civil and criminal actions against Anderson as an alleged defaulter and embezzler. There are to be found decisions of the courts in this State which appear to hold that the county board, as the fiscal agent of the county, may contract for the employment of counsel of its own choice, to prosecute or defend actions which involve the county’s concern. For example:— The employment of an attorney by the county board to procure information and evidence necessary in the defense of a suit against the county was held to be legal as a general proposition, although the particular contract involved was declared to be invalid. (Gillett v. Logan County, 67 Ill. 256.) The employment of an attorney to test the validity of a tax was approved in County of Franklin v. Layman, 145 Ill. 138. It was held in Ottawa Gas Light & Coke Co. v. People, 138 Ill. 336, that the county board may employ an attorney to prosecute suits for delinquent taxes, notwithstanding the State’s Attorney is capable and willing to act. The reason ascribed for such holding is that under the Bevenue Act, § 230, Cahill’s St. ch. 120, 11245, any county, city, town, school district, or other municipal corporation to which a delinquent tax is due may institute suit in its own name, for the recovery of such tax. But it was held in People v. Kimmel, 323 Ill. 261, that where a suit is brought against a delinquent taxpayer, it may be instituted in the name of the People by the State’s Attorney, without the consent of the county board and, upon collection, the taxes will be distributed among the various taxing bodies according to the respective shares.

Section 5, Cahill’s St. ch. 14, If 5, entitled, “An Act in Begard to Attorney-Gfeneral and State’s Attorneys” enumerates duties of the State’s Attorney. Among them is, “to commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in' his county, in which the People of the State or county may be concerned.” The county board has no power to lessen his duties or to curtail the exercise of his lawful authority or to control him therein. At common law, the prosecuting attorney has absolute control of criminal prosecutions. In civil actions, the duty of representing the county is likewise imposed upon him, unless imposed upon another by express statutory provision. (32 Cyc. 715.)

Whatever conflict there may appear to be in earlier decisions, the law relating to the powers and duties of a constitutional officer, such as the State’s Attorney, is definitely stated in Fergus v. Russel, 270 Ill. 304, and we take it that the duty of prosecuting a county treasurer, either criminally or civilly, on account of shortage in his accounts, primarily devolves upon the State’s Attorney, and his duty and right to institute and carry on such prosecutions cannot be interfered with or curtailed by the county board.

Section 6 of said chapter 14 provides that in case- of the State’s Attorney’s sickness, absence,interest, or inability to attend, the court, in which the cause is pending, shall request the Attorney-General to act in the place of the State’s Attorney; and in the event the Attorney-General is unable to act, the court may appoint some competent attorney to prosecute or defend the cause. It would seem that so far as this suit is concerned, section 6 has no application, because the section applies only to pending causes. The contract in this case was entered into before any of the proceedings mentioned in the bill were actually instituted and pending. If the employment had been made after the institution of such proceedings, a compliance with the requirements of section 6 would have been necessary to the validity of the contract. However, the appointment was not made under that section. Therefore, the question arises whether or not the county board may lawfully enter into a contract for the employment of counsel in matters prior to the institution of contemplated or threatened legal proceedings. It would seem that if an attorney is legally appointed, whether before or after litigation was commenced, it would be proper for the county hoard to contract with him in respect to his fees. (Section 23, Cahill’s St. ch. 34, (123.) The statute provides for a legal appointment after action begun but contains no provision for appointment before suit or proceeding has been started. But none is needed. Courts of general criminal jurisdiction have inherent power in the absence of a statute to appoint special attorneys, when the regular officer is absent or disqualified, in order to prevent a failure of justice. (32 Cyc. 719.) The existence of this power is undenied and necessary to a proper and orderly administration of justice.

So far as section 6 authorizes courts to appoint special attorneys to attend to the people’s business, it is but declaratory of the common law. The only substantial change is that the court must first request the Attorney-General to act. Where the court has made a valid appointment, the county board may enter into a binding contract with the attorney and such contract cannot be said to be ultra vires.

The bill in this case is framed upon the theory that the county board had no right to contract to pay appellees for the legal services contemplated. It does not allege that the State’s Attorney was not sick, absent, interested, or otherwise disqualified. It does not allege that the court had not appointed appellees to act in behalf of the State’s Attorney. For all that appears in the record, the appointment may have been made by the circuit court of Marshall county upon sufficient representations as to the inability or disqualification of the State’s Attorney to act. If the appointment was so made, and the bill must be construed most strongly against the pleader, the county board was acting within its power and proper function when it entered into a contract with the attorneys regarding their fees for legal services. The demurrer was correctly sustained, and the order dismissing the bill is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    John W. Fee, Appellant, v. Zurich General Accident and Liability Insurance Company, Ltd., Appellee.
    Gen. No. 8,329.
    Opinion filed October 23, 1929.
    Rehearing denied, opinion modified and refiled May 31, 1930.
    Doyle, Sampson & Giffin, Terry Lindner and Alfred F. Newkirk, for appellant.
    Charles S. Andrus, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

John W. Fee, appellant, commenced this suit in the circuit court of Sangamon county against the appellee, Zurich General Accident and Liability Insurance Company, to recover the amount of loss sustained by him under the provision of an insurance policy issued to him by the appellee, which provides indemnity for robbery committed in his store in the City of Springfield. Appellant’s store was “robbed” in the evening of October 18, 1927 by an unknown bandit. No question is raised about the amount of loss sustained by the appellant; and the evidence shows conclusively that the loss sustained was $4,208.58; nor is there any dispute about the fact that a robbery was committed. It appears from the evidence that the appellant was the owner of a retail jewelry business which he carries on in a storeroom known as 218 South Sixth Street in the City of Springfield. P. A. Merlo, who has been in the appellant’s employ for a number of years, by arrangement with appellant had charge and control of the store and the business and the property of appellant in the store in the absence of the appellant; and he opened the store for business in the morning and closed it in the evening; and carried the key to the store for that purpose; he also had the combination of the safe lock; and had the secret of how to get into the inner compartments of the safe, where the diamonds and costlier jewelry were put for safe-keeping and the money, after the close of business. The evidence clearly shows that he had actual charge, custody and control of the goods and chattels, jewelry and money of appellant’s business, when the appellant was not there himself; and upon Merlo rested the duty of safeguarding the property of the business, and the valuable jewelry, diamonds and money, which it was his duty to place in the inner compartments of the safe at the closing of business and whenever it was necessary for their security; and Merlo was custodian of the goods and property in the store and on duty as such custodian in the absence of the appellant whenever he was on premises and was so on the evening of the robbery. He had closed the store about 5:30 or 6 o ’clock on that evening, and had gone to the home of his daughter, which was his place of residence. Shortly after he had reached his residence, the following incidents occurred which culminated in the robbery of the store. Concerning these incidents, Merlo who was a witness, and whose testimony is not contradicted, testified as follows :
“A short time after I reached home the door bell rang. I do not think it was seven o ’clock. The granddaughter went to the door and said somebody wants to see Mr. Merlo and then I went to the door. The man said ‘I want to speak to Mr. Merlo,’ and I said: ‘I am Mr. Merlo.’ He said he wanted to see a house which I owned on West Canedy Street, which I was offering for sale and he wanted to see it right away. I went in the house to get my hat and a key to the house on West Canedy.'
“I went out of the house and closed the door and as soon as I got out this man pointed a revolver at me and said: ‘I know yon have the key to the John Fee store and I want you to come right away, if you don’t come I shoot yon right away, go ahead of me.’ I didn’t know what to do, I wanted to save myself, I wanted to save the store, but I didn’t know what excuse to give. I told him that business wasn’t very good, that I don’t think he ought to do a thing like that, because business wasn?t good and there wasn’t any money. He said he didn’t believe me and to go right ahead or he would shoot me. He had the gun pointed at me and threatened to kill me.
“We went down from my daughter’s house and walked west to Pasfield and then south one block to Cook Street, then east on Cook Street to Second Street, then north on Second Street to Capitol Avenue, then east on Capitol Avenue to Sixth Street, then on the west side of Sixth Street north to across from the store, where we crossed Sixth Street to the store.
“On the way down town I looked for a policeman but I didn’t see any and I didn’t see anybody else that I knew. I also thought that the night watchman would be there about the time we got there, but I didn’t see the night watchman. Mr. Bogardus would be one of the night watchmen for whom I was looking, but I didn’t see anybody that I knew.
“All the way down to the store the man had a gun in his hand in his pocket and the gun was all the time pointed toward me. The man didn’t say anything on the way up town until we got to the store when he said open the door quickly because I am going to shoot you. I opened the door and we went to the safe where he said ‘Open the safe.’ I was very excited, didn’t know what I could do and didn’t believe I would be able to open the safe, but I didn’t tell him anything. I turned the combination to the safe and it opened and then I took the key to the second door and opened it. The man pulled on the little steel door of the strong box inside the safe and then he said ‘Open that door.’ I said I didn’t have the key, but he said you find the key and if you don’t find it right away, I’ll shoot you. Open this door right away. I knew where the key was and I took it and opened the little door. He took the package of diamonds and put it in his pocket. He grabbed up the bills but didn’t grab the change.
“He opened all the drawers in the safe, looked in them, and afterwards closed them. I told him that some of the drawers had jewelry work, and that it was not valuable. Afterwards he looked at two trays of rings and lie took the three best ones. The others he left in the safe.
“Then he said ‘Shut.’ I closed the drawers including the strong box, and the inner door, and he closed the outside door and turned the combination.
“He took the wallet which had the diamonds from the strong box. He didn’t open the wallet, just put it in his pocket the way it was. He took three rings and put them in his pocket. He took money, I didn’t know whether he took checks or not, but it didn’t look like he took checks, because I just saw money, and no change. He put that in his pocket and he had it in his pocket when he left.
“He turned the combination of the safe and we went out the outside front door. I locked the door. He then said that he would take me home and we went back the same way we come, on Second Street almost to Edwards Street, and we stopped in a dark place on the west side of Second Street, between the Centennial Building and Edwards Street. . . .
“After we got to the place by the Centennial Building he said to stop and we stayed there a little while, maybe fifteen minutes. All this time this man talked rough and cursed very bad. He said he wanted to shoot me. He said that I was going to call the police to arrest him, but I didn’t say anything. He put the revolver up to me and I said I wouldn’t call the police if he would let me go. He said he didn’t believe me and looked like he would kill me.
“After I promised not to call the police but said I would tell the boss, he said all right and let me go. . . .”

The purpose of the policy which was issued to the appellant by the appellee company according to its terms, was “To indemnify the Assured for loss of or damage to money and securities and merchandise usual to the business of the Assured stated in Item 4 of the Declarations, and furniture, fixtures and other property, occasioned by robbery or attempt thereat, committed during the hours specified in said Section (b), within the Assured’s premises.”

Robbery is defined in the policy as follows:

“Robbery as used in this Policy shall mean a felonious and forcible taking of property: by violence inflicted upon a custodian having the actual care and custody of the property at the time or by putting such custodian in fear of violence; or by an overt felonious act committed in the presence óf a custodian and of which such custodian was actually cognizant at the time.”

It is apparent that the forcible and felonious taking of appellant’s property from his place of business under the terms of the policy issued to him was a robbery, for which the appellant would be entitled to indemnity if Merlo, who was present in the premises at the time of the robbery can be legally considered a custodian of the property which was lost to appellant by the robbery. The appellee company disclaims liability under the policy in question because it contends that at the time of the robbery no custodian was in the premises who had “the actual care and custody of the property” taken; and this is the main contested question presented for review; and it concerns the provision in the policy referred to requiring the presence of a custodian in the premises on duty at the time of the commission of a robbery.

The trial of the cause was by the court, a jury having been waived. The trial court sustained the appellee’s contention and rendered a judgment barring appellant’s right of recovery. This appeal is from the judgment rendered.

A careful consideration and review of the evidence leads us to the conclusion that the requirement of the policy concerning a custodian was complied with by the presence of Merlo in the store at the time of the robbery. The only inference which can be drawn from the evidence is that he was the custodian of the property which was the subject of the robbery, and at the time of the robbery had actual charge and custody thereof. The evidence also shows that he realized his obligation as custodian and his duty as custodian to safeguard the property in his charge and tried to perform his duty to safeguard the property by making the attempt to save the diamonds and money which were in the inner compartment from the grasp of the robber by representing to him, when commanded to unlock the inner compartment that he did not have the key to the compartment and therefore could not unlock it. The ruse was not successful, but it shows that Merlo was alert to try to save as much of the property which was in his charge and under his control as he could. There is no provision in the policy which requires the custodian to have been on the premises any particular length of time prior to the perpetration of the robbery; nor would it have made any difference in the result; nor is there any provision concerning the manner in which he gets into the premises; the substantial requirement is that there be a custodian there at the time of a robbery who has actual care and custody of the property which is the subject of the robbery; and if a custodian was present and had actual charge and custody of the property, then he was on duty as custodian. We conclude therefore that the requirement of the policy referred to was complied with by Merlo’s presence and conduct at the time of the robbery. Insurance contracts such as the one in question should be construed in accordance with the objects and purposes which the parties had in mind in entering into them, and which they sought to accomplish. 13 C. J. 540; Briquette Fuel Co. v. Davis, 134 Ill. App. 343. The clear purpose of the policy in question was to indemnify the appellant for loss he might sustain by just such a robbery as was committed on his premises and the rule is also well settled that provisions and exceptions which tend to limit the liability of the insurer should be construed most strongly against the party preparing the contract for whose benefit they are inserted. This is emphasized in Joseph v. New York Life Ins. Co., 308 Ill. 93, where the court said: “If doubts exist, the language must be liberally construed in favor of the insured, so as not to defeat, except by clear and certain language, his claim to indemnity. ’ ’

For the reasons stated, the judgment is reversed and the cause remanded with directions to the trial court to enter a judgment in favor of the appellant for the amount of his loss, which the evidence shows to be $4,208.58.

Reversed and remanded with directions.


author: Mr. Presiding Justice Eldredge

text:
    Pauline Bushu, Appellee, v. Frank Cordera et al., Appellants.
    Gen. No. 8,345.

      Opinion filed April 22, 1930.
    Rehearing denied May 31, 1930.
    Alvin G. Whitehouse, James H. Murphy and Jesse Peebles, for appellants.
    Pope & Driemeyer and Raymond G. Real, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On the trial in this case in the court below appellee, as the administratrix of the estate of her husband, recovered a judgment for $5,000 damages in an action on the case against appellants. The appellants consist of the father and three sons who were partners in the trucking business. The truck was being driven by Angelo Cordera alone. The deceased was the engineer on a passenger train operated by the C. O. C. & St. L. By. Co. The first three counts of the declaration charged that Angelo Cordera on April 16,1928 drove a truck owned by the defendants in a northerly direction on the hard road known as route No. 4 toward where said road crosses the tracks of said railroad company; that plaintiff’s intestate was a railroad engineer employed by the railroad company and was driving a locomotive attached to a train of cars proceeding to St. Louis and while it was going in a westerly direction at the intersection of the road and the railroad tracks Cordera so carelessly and improperly drove and managed the truck that the train struck the truck, the engine was derailed and plaintiff’s intestate was killed. The second count charges that Cordera drove the. truck in question just before the collision at a speed of 20 miles per hour which was greater than the statutory rate of speed which he was permitted to use. The third count charges that Cordera failed to reduce the rate of speed of the truck to 10 miles an hour as required by statute and that the load thereon was greater than the weight permitted by the statute. The last three counts are not abstracted except with the statement that they charge wanton and wilful negligence.

The railroad tracks run northeasterly and southwesterly and cross the State highway No. 4 at a point about two miles southwest of the Village of Livingston. This is a country crossing and is not within the limits of any incorporated town, village or city. Angelo Cordera was proceeding from St. Louis to Benld in a truck loaded with merchandise. The truck weighed over 9,000 pounds and the load of merchandise 7,000 pounds or three and one half tons. The tracks of the railroad ran in a straight line as did also the highway. The tracks crossed the highway at an angle of practically 45 degrees so that they would be more or less in front of a person approaching the crossing from the south. There was a railroad crossing sign located 325 feet south of the crossing. Nearer the crossing was the State stop sign. There were also four sets of black and white painted stripes on the highway, the first being 119 feet south and the fourth 416 feet south of the crossing. The surrounding country was practically level and the fields in the vicinity of the railroad tracks and the highway were planted in wheat which at that time was but a few inches high. At a point 250 feet south of the south rail of the southbound railroad track a train could be seen 3,500 feet east of the crossing. At a point 200 feet south thereof a train could be seen as far as the town of Livingston, a distance of about two miles. From a point 348 feet south of the tracks the view was unobstructed toward the east for 2,500 feet. The only obstruction to the view from any of these points was a line of telegraph or telephone poles. The train at the time of the collision was running between 50 and 60 miles per hour in a southwesterly direction. Angelo Cordera was driving north on the highway at a speed of about 20 miles per hour. When Angelo Cordera reached the first black and white diagonal lines on the pavement the evidence is that he looked east and west and saw no approaching train. He did not slacken the speed of the truck in any way but ran the same onto the crossing where it was hit by the engine and the collision caused the derailment thereof resulting in the death of plaintiff’s intestate. All the above facts are conceded and undisputed. It is proved by a manifest weight of the evidence, not only by the train crew but by a number of disinterested witnesses, that the whistle on the engine was blown for the crossing and that the bell thereon was ringing. There is no evidence that Angelo Cordera looked to the east or west to see whether a train was coming except at the time when he approached the black and white diagonal lines painted on the highway which were located 416 feet south of the crossing. The truck was equipped with solid rubber tires and had a gross weight with its load of more than 12,000 pounds and under section 23 (3) of the Motor Vehicle Act, Cahill’s St. ch. 95a, If 24, its speed was limited to 12 miles per hour, and section 145b of the Eoad and Bridge Act, Cahill’s St. ch. 121, If 161, provides that the person controlling the movement of any self-propelled vehicle upon approaching any highway crossing or a railroad at grade shall reduce the speed of such vehicle to one not to exceed 10 miles per hour and that at all grade crossings at which “stop” signs are placed shall bring such vehicle to a full stop before proceeding over the railroad tracks. There is no rule of law that it is negligence to run a railroad train at a high rate of speed through open country and Cordera, the driver of the truck, could not assume that a train might not approach this crossing at a high rate of speed. He violated the law in not stopping his truck when he came to the stop sign and also in driving it at 20 miles an hour. If he had looked at any point within 250 feet of the crossing he could have seen the approaching train for a distance of 3,500 feet. As was said in the case of Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, “The rule has long been settled in this State that it is the duty of persons about to cross.a railroad track to look about them and see if there is danger, and not to go recklessly upon the track but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. (Graham v. Hagmann, 270 Ill. 252; Lake Shore and Michigan Southern Railroad Co. v. Hart, 87 id. 529; Chicago, Burlington and Quincy Railroad Co. v. Damerell, 81 id. 450; Toledo, Wabash and Western Railway Co. v. Jones, 76 id. 311.) One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. No one can assume that there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care. The law will not tolerate the absurdity of allowing a person to testify that he looked but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it. (Schlauder v. Chicago and Southern Traction Co., 253 Ill. 154.) ” The evidence is conclusive that the driver of the truck disregarded all caution and recklessly drove it upon the railroad tracks. He was charged with notice that by placing such a heavy obstruction upon the track in such a manner might cause the wreck of any approaching train and jeopardize the lives not only of the train crew but of the passengers upon the train.

It is urged by counsel for appellant that the court erred in refusing to exclude the testimony and to direct the jury at the end of the plaintiff’s case to find the defendants not guilty and also in overruling a motion made to exclude all the evidence in the case at the end of all the evidence. The latter motion was first directed to the evidence under all the counts which was correctly refused by the court as there was ample evidence to sustain the first three counts of the declaration. The motion to exclude the evidence under the individual counts was limited to the sixth count which charged wilful and wanton conduct. This motion was also overruled. This count as before stated has not been abstracted but we assume from the statement in the abstract hereinabove referred to that it was substantially the same as the fourth and fifth counts. Ordinarily whether a party is guilty of wantonness and wilfulness under the evidence is a question of fact for the jury. Bremer v. Lake Erie & Western R. Co., 318 Ill. 11. In connection with this question complaint is made of an instruction given on behalf of the plaintiff as follows: “The court instructs the jury that, in order to prove wilful or wanton conduct upon the part of the defendants in this cause, it is not necessary to show that defendants possessed ill will against the deceased, Melvin A. Bushu.” This is the only instruction offered or given on behalf of either party which mentions the subject of wilfulness and wantonness. It is but an abstract proposition of law and but partially defines wilful and wanton conduct. It might well have been refused but the giving of it under the circumstances was not reversible error as the question of wilful and wanton conduct on the part of the defendants was practically eliminated from the case by the giving of plaintiff’s third instruction, to which no objection is made, which specifically limits and restricts the jury in the assessing of damages to such actual damages as would be a fair and just compensation which might be shown by the evidence for the pecuniary injuries resulting from the death of plaintiff’s intestate to his widow and next of kin and what they might have reasonably expected in a pecuniary way from the continued life of the intestate.

Counsel in their statement preceding their brief make the following statement: “We also respectively present that when all the circumstances of this case are considered, it was error on the part of the trial judge to refuse the second instruction (rec. p. 211) which was asked for by the defendants and refused by the court.” In the whole statement, brief and argument of counsel for appellant, this is the only reference to either the abstract or the record where either the evidence or the instructions might be found. It is a rule of this court that all references to the evidence and matters presented to be considered should be designated where the same might be found in the abstract. We have, however, examined the page of the record referred to and find that there are two refused instructions on said page, the first is an abstract proposition of law stating that it was the duty of plaintiff’s intestate while driving the engine and train of cars over a public road crossing to regulate the speed thereof with proper regard for public safety and the rights of those persons who might lawfully be traveling along and upon the public highway. The other refused instruction attempts to set out the rule in regard to the burden of proof. Neither instruction is identified by number nor is the instruction referred to mentioned again in the argument. Counsel for appellee assume that refused instruction No. 2 as mentioned is the first refused instruction on said page of the record. If they are right in this it was rightfully refused as being a mere abstract proposition of law and not applied to any of the facts in the case. However, we have no way of determining which instruction is referred to.

There is no reversible error in the record and the judgment' of the circuit court is affirmed.

Affirmed.